THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


CONK^LINdr,  Alfred,  iurist,  b.  in  Ainagansett, 
SnlTolk  fo.,  N.  Y.,  12  Oct.,  17H0 ;  d.  in  Utica, 
N.  Y.,  5  Fel).,  1874.  lie  was  gradiialed  at  Union 
in  1810,  studied  law,  and  was  admitted  to  Ihe  bar 
in  1812,  He  was  district  attorney  for  JMontgoniery 
county  three  years,  and  was  elected  to  congress 
as  an  anti-Jackson  democrat,  serving  from  1821 
till  182;}.  He  then  removed  to  Ali)any,  and  in 
1825  was  appointed  by  President  John  Quincy 
Adams  judge  of  the  U.  S.  district  court  ior  the 
northern  district  of  New  YorI<,  which  ofhce  he 
hohl  till  1852,  wlien  President  Fillmore  appointed 
him  minister  to  Mexico.  On  his  return  from  that 
mission,  in  1853,  he  settled  at  Genesee,  N.  Y.,  de- 
voting himself  mainly  to  literary  pursuits.  Union 
college  gave  him  the  degree  of  LL.  D.  in  1847.  He 
published  "  Treatise  on  the  Organization  and 
Jurisdiction  of  the  Supreme,  Circuit,  and  District 
Courts  of  the  United  States  "  (2d  ed.,  1842) ;  "  Ad- 
miralty Jurisdiction  "  (2  vols.,  1848) ;  "'  The  Pow- 
ers of  the  Executive  Department  of  the  United 
States"  (Albany,  1866);  and  the  "Young  Citizen's 
Manual." — His  son,  Frederick  Augustus,  b.  in 
Canajoharie,  N.  Y.,  22  Aug.,  1816,  received  a  classi- 
cal education,  and  became  a  merchant.  He  was 
for  thi'ee  years  a  member  of  the  New  York  legisla- 
ture. In  June,  1861,  he  organized,  at  his  own  ex- 
pense, the  84th  New  York  regiment,  serving  as  its 
colonel.  During  July,  1863,  the  regiment  did 
duty  as  provost-guard  at  Baltimore,  Md.,  and  in 
1864  it  saw  several  months'  service  in  Virginia. 
Col.  Conkling  served  one  term  in  congress,  from 
1861  till  1863,  and  in  1868  was  the  Republican  can- 
didate for  mayor  of  New  York.  He  changed  his 
politics,  however,  and  spoke  in  various  parts  of 
the  Union  in  favor  of  Mr.  Tilden's  election  to  the 
presidency  in  1876,  and  of  Gen.  Hancock's  in  1880. 
He  is  a  trustee  of  the  College  of  physicians  and 
surgeons,  a  member  of  the  geographical  and  his- 
torical societies,  and  the  author  of  various  reports 
to  the  New  York  legislature,  and  numerous  pam- 
phlets on  political,  commercial,  and  scientific  sub- 
jects.— Another  son,  Roscoe,  senator,  b.  in  Albany, 
N.  Y.,  30  Oct.,  1829, 
received  an  academic 
education,  and  stud- 
ied law  three  years 
under  his  father's 
tuition.  In  1846  he 
entered  the  law-of- 
fice of  Francis  Ker- 
nan,  afterward  his 
colleague  in  the  sen- 
ate, and  in  1850  be- 
came district  attor- 
ney for  Oneida  coun- 
ty. He  was  admit- 
ted to  the  bar  in  that 
year,  and  soon  be- 
came prominent  both 
in  law  and   in  poli-  /)  /^ 

tics.    He  was  elected  /%£^qJ^'Muc. 

mavor   of   Utica   in  1\ 

1858,  and  at  the  ex-  Vj 

piration  of  his  first 

term  a  tie  vote  between  the  two  candidates  for  the 
office  caused  him  to  hold  over  for  another  terra. 
In  November,  1858,  he  was  chosen  as  a  Republican 
to  congress,  and  took  i^us  seat  in  that  body  at  the 


beginning  of  its  first,  session,  in  December,  1859 — 
a  session  noted  for  its  long  and  bitter  contest  over 
the  speakership.  lie  was  re-elected  in  1860,  but  in 
1862  was  defeated  by  Francis  Kernan.  over  wiioin, 
however,  he  was  elected  in  18G4.  His  first  com- 
mittee was  that  on  the  District  of  Columbia,  of 
wiiich  ho  was  afterward  chairnum.  He  was  also  a 
member  of  the  committee  of  ways  and  means  and 
of  the  special  reconstruction  committee  of  fifteen. 
Mr.  Coid<ling's  first  important  speech  was  in  sup- 
port of  the  fourteenth  amendment  to  the  constitu- 
tion. He  vigorously  attacked  the  generalship  of 
McClellan,  opposed  Spaulding's  legal-tender  act, 
and  firiiUy  upheld  the  government  in  the  prosecu- 
tion of  the  war.  Mr.  Conkling  was  re-elected  in 
the  autumn  of  1866,  but  in  January,  1867,  be- 
fore he  took  his  .seat,  was  chosen  U.  8.  senator  to 
succeed  Ira  Harris,  and  re-elected  in  1873  and 
1879.  In  the  senate  he  was  from  the  first  a  mem- 
ber of  the  judiciary  committee,  and  connected 
with  nearly  all  the  leading  committees,  holding 
the  chairs  of  those  on  commerce  and  revision  of 
the  laws.  Senator  Conkling  was  a  zealous  sup- 
porter of  President  Grant's  administratioii  and 
largely  directed  its  general  ))o]icy  toward  the 
soutii,  advocating  it  in  public  and  by  his  personal 
influence.  He  was  also  instrumental  in  the  pas- 
sage of  the  civil-rights  bill,  and  favored  the  re- 
sumption of  specie  payments.  He  took  a  promi- 
nent part  in  framing  the  electoral-commission  bill 
in  1877,  and  sup|)orted  it  by  an  able  speech,  argu- 
ing that  the  question  of  the  commission's  jurisdic- 
tion should  be  left  to  that  l)ody  itself.  I\Ir.  Conk- 
ling received  9;{  votes  for  the  Republican  nomina- 
tion for  president  in  the  Cincinnati  convention  of 
1876.  In  the  Chicago  convention  of  1880  he  advo- 
cated the  nomination  of  Gen.  Grant  for  a  third 
term.  In  1881  ho  became  hostile  to  President 
Garfield's  administration  on  a  fiuostion  of  patron- 
age, claiming,  with  his  colleague,  'i'liomas  C.  Piatt, 
the  right  to  control  federal  appointments  in  his 
state.  The  president  having  appointed  a  political 
opponent  of  Mr.  Conkling's  to  the  collectorship  of 
the  juirt  of  New  York,  the  latter  opposed  his  con- 
firmation, claiming  that  he  should  have  been  con- 
sulted in  the  matter,  and  that  the  nomination  was 
a  violation  of  the  pledges  given  to  him  l)y  the 
•resident.  Mr.  (Jariiold,  as  soon  as  JNIr.  Conkling 
lad  ileclared  his  opixisition,  withdrew  all  other 
iinminalions  to  New  York  offices,  leaving  the  ob- 
jrctionablo  one  to  be  acted  on  by  itself.  Finding 
that  he  could  not  prevent  the  confirmation,  Jlr. 
Cdtikling,  on  l(i  May,  resigned  his  senatorship.  as 
iiil  also  his  colleaguo,  and  returned  home  to  seek 
I  vindication  in  the  form  of  a  re-election.  In 
fliis,  however,  after  an  exciting  canvass,  they 
liiiled;  two  other  republicans  were  chosen  to  fill 
in;  vacjint  places,  and  Mr.  Conkling  returned  to 
Ins  law  practice  in  New  York  city.  In  188r)-'6  he 
^^..s  counsel  of  the  Slate  senate  investigating  com- 
Uiitlee,  appointed  for  the  purpose  of  disclosing  the 
fraud  and  bribery  in  the  grant  of  tiie  Broadway 
orse-railroad  franchise  by  the  board  of  aldermen 
n  1884.  After  the  takiiig  of  testimony,  lasting 
ibout  three  months,  Mr.  Conkling,  together  with 
^liirenc(»  A.  Seward,  made  an  argument  which 
'suited  in   the    repeal  of    the  Broadway  railroad 


cliarlcr.— Alfred's  daughter,  Margaret  Cockbiirn 

(Mrs.  Steele),  b.  27  Jan.,  1814,  has  publislied  "iMe- 
njoirs  of  tlie  Mother  and  Wife  of  Washington " 
(Auburn,  N.  Y.,  1851-';]);  "Isabel;  or.  Trials  of 
the  Heart";  a  translation  of  Florian's  "History  of 
the  Moors  of  Spain,"  and  has  contributed  to  current 
literature.— Alfred  Conkling's  j^randson,  Alfred 
Ronald,  b.  in  New  York  city,  28  Sept.,  1850,  was 

graduated  at  Yale  in  1870,  pursued  his  studies  at 
Harvard  and  in  Berlin,  Germany,  and  on  his  return 
(o  this  country  was  employed  on  the  U.  S.  geologi- 
cal survey.  He  then  studied  law,  was  admitted 
to  the  bar  in  1879,  and  became  assistant  U.  S.  at- 
torney in  1881-2.  He  was  an  unsuccessful  Repub- 
lican'candidate  for  congress  in  1884,  and  made  j 
many  addresses  in  favor  of  the  election  of  Jamos 
G.  Blaine  during  the  presidential  campaign  of  that 
year.  He  is  the  author  of  "Appletons'  Guide  to 
Mexico  "_  (New  York,  1884).  1 


THE    POWERS 


THE  EXECOTIYE  DEPARTMENT 


GOVERNMENT  OF  THE  UNITED  STATES. 


By  ALFRED   CONKLING. 


'Better  to  be  awakened  by  the  alarm-bell  than  to  perish  in  the 
flames."  —  Burke. 
\ 


ALBANY: 

PUBLISHED  BY  WEARE  C.  LITTLE. 
1866. 


Entered  according  to  act  of  Congress,  in  the  year  eighteen  hundred 
and  Bixt3--six, 

By   ALFRED    CONKLING, 

in  the  Clerk's  ofllce  of  the  District  Court  of  the  United  States  for 
tlie  Northern  District  of  New  York. 


■WEED,  PAES0N8  Jt  COMPANY,  PRINTEES. 


EXECUTIVE    POWER. 


The  unparalleled  struggle,  for  the  uiaiu- 
teuauce  of  the  Union,  from  which  we  have 
so  lately  emerged,  is  rightl}^  regarded  as 
one  of  those  great  historic  events  which 
shape  the  destinies  of  nations.  Some  of 
its  fruits  are  already'  palpable  to  the  gross- 
est sense.  It  has  freed  us  from  the  curse 
and  opprobrium  of  legalized  human  bond- 
age; it  has  demonstrated  our  capacity  for 
successful  warfare,  upon  a  grand  scale,  on 
land  and  sea  ;  and  in  proving  to  us,  as  it 
has  incontestably  done,  that  we  have  noth- 
ing to  expect  from  the  good-will,  little 
from  the  honesty,  and  still  less  from  the 
magnanimity  of  two,  at  least,  of  the  most 


powerful  nations  of  the  old  world;  it  Las 
also  taught  both  them  and  ns  that,  so  long 
as  we  are  true  to  ourselves,  we  have  little 
to  fear  from  their  enmity.  It  has  aroused 
into  unwonted  activity  all  the  intellectual, 
moral,  and  impulsive  energies  of  the  Ameri-. 
can  mind ;  and  if  it  has  brought  out,  in 
bold  and  revolting  relief,  all  that  is  most 
odious  and  humiliatiug  in  man,  it  has 
expanded  and  invigorated  all  that  inspires 
him  with  noble  thoughts  and  high  aspira- 
tions, and  all  else  that  exalts  him  to  a  rank 
in  the  scale  of  beiug,  "but  a  little  lower 
than  the  angels;"  and  whatever  else  may 
befall  us,  we  may  confidently  hope  that  the 
grand  imimlse  it  has  thus  imparted  to  our 
career  of  intellectual  and  moral  civilization, 
is  destined  to  endure.  Let  this  great  boon 
be  our  consolation  for  the  terrible  sacrifices 
it  has  cost  us.  But  it  is  not  upon  these 
topics  that  I  design  to  dwell,  and  I  address 


3 

myself  at  ouce  to  the  task  I  Iiave  imder- 
takcu. 

One  of  the  consequences  of  the  liebellion 
has  been  to  awaken  public  attention  more 
strongly  than  it  bad  yet  been,  to  a  great 
problem  of  constitutional  law ;  a  problem 
of  transcendent  imiiortance,  and  demand- 
ing the  earnest  and  dispassionate  consider- 
ation of  the  American  people.  It  was 
discussed  in  the  constitutional  convention ; 
by  the  cotemporaneous  public  press;  by  the 
writers  of  the  "Federalist,"  two  of  whom 
were  among  the  most  distinguished  mem- 
bers of  the  convention,  after  it  had  been 
submitted  to  the  people  for  ratification ; 
and  in  the  conventions  of  the  several 
States ;  and  it  has,  to  a  greater  or  less 
extent,  incidentally  provoked  discussion 
under  nearly  every  administration  of  the 
national  government,  from  that  of  AVasli- 
ington  inclusive,  down  to  the  present  day. 


It  lias  also  been  briefly  treated  by  our 
writers  ou  constitutional  jurisprudence ; 
and,  with  regard  to  some  of  its  elements, 
subjected  also  to  judicial  scrutiny.  And 
yet,  now,  imder  all  the  lights  thus  shed 
upon  it,  after  the  lapse  of  three-quarters  of 
a  century,  it  not  only  remains  practically 
unsolved,  but  presents  itself  under  new  and 
alarming  phases.  I  hardly  need  to  say  that 
I  refer  to  the  scope  of  Executive  Power 
in  our  national  system  of  government,  and, 
incidentally,  to  the  line  which  separates  it 
from  the  legislative  power.  The  subject 
already  occupies  no  inconsiderable  share  of 
the  public  attention,  and  has  awakened,  in 
no  slight  degree,  the  solicitude  of  thought- 
ful men.  It  would  have  been  strange,  and, 
to  the  enlightened  patriot,  disheartening, 
had  it  been  otherwise.  Unfortunately,  it 
has  now  become  complicated  with  party 
politics,  and  consequently  obscured  in  the 


5 

popular  iiiiiul,  by  the  blind  passions  of 
party  zeal.  A  basty  glance  over  the  recent 
past  will  suffice  to  show  hoAv  all  tbis  lias 
happened,  and  is  essential  to  ni}^  design. 
The  sudden  surrender  of  the  rebel  armies 
placed  the  country  in  a  predicament  de- 
manding, on  the  part  of  the  government, 
the  utmost  circumspection,  the  most  upright 
intentions,  and  the  most  consummate  skill. 
The  simultaneous  assassination  of  the  Pres- 
ident added  to  the  perplexity  inseparable 
from  the  emergency.  That,  in  anticipation 
of  its  occurrence.  President  LI^X'OLX  had 
profoundly  meditated  its  exigencies,  is 
not  to  be  doubted.  During  four  event- 
ful and  harassing  years,  in  the  loyal  as 
well  as  in  the  rebellious  States,  and  in 
both  houses  of  Congress,  ho  had  con- 
stantly been  the  object  of  wanton  ol)lo(iuy 
and  insulting  vituperation ;  but  he  was 
too  profoundly  sensible  of  the  momentous 


6 

respousibilitics  of  his  office,  to  allow  his 
equanimity  to  be  disturbed  by  these  asper- 
sions;    and     calmly    pursuing    the    even 
tenor    of   his    way,   in    the    conscientious 
and    faithful    discharge    of   his    duty,    he 
suffered  them  to  pass  by  him  as  the  idle 
wind.      Conscious    of    his    own    rectitude, 
and  not  wanting  in   a  just  confidence  in 
his   own    judgment,    he    was    no    egotist, 
and  did  not  imagine  that   he   was  wiser 
than  all  other  men.      He    had    read    the 
Constitution  too  carefully,  and  understood 
it    too  well,  not  to  see  that    the  august 
political  fabric,  shaken  to  its  foundation, 
and  which  he  had  sworn,   to  the   best  of 
his  ability,  to  j^reserve,  protect  and  defend, 
could  be  constitutionally  restored  and  reno- 
vated only   by    the   joint    agency  of   the 
legislature  i)rescribing  the  means,  and  of 
the    executive    faithfully     carrying    them 
into    effect;     and     neither    flatterv,    nor 


7 

evil  counsel,  nor  ambition  could  have 
seduced  him  to  attempt  the  herculean 
task  of  reconstruction  alone,  by  the 
assumption  of  powers  that  did  not  belong 
to  him.  Ilad  he  lived,  therefore,  but  a  few 
weeks  longer,  it  may  safely  be  presumed 
that  he  would  have  gladly  availed  himself, 
as  he  had  done  at  the  outbreak  of  the 
rebellion,  of  his  constitutional  right  to 
convene  the  legislative  council  of  the 
nation,  to  deliberate  and  decide  upon 
the  momentous  questions  to  be  determined. 
His  untimely  death  was  inevitably  followed 
by  the  instantaneous  substitution  of  a  suc- 
cessor, in  nearly  every  element  of  character 
his  opposite.  Whether,  and  to  what  extent, 
his  foul  assassination  —  a  deed  destined,  by 
its  atrocity,  to  eternal  infamy  and  execration 
—  is  attributable  to  a  deliberately  formed 
hope  that  the  change  would  be  a  boon  to 
the  already  prostrate  foes  of  the  Union,  or 


is  to  be  ascribed  to  the  uucalculating 
impulses  of  hatred  and  rage,  must  as  yet  be 
left  to  conjecture.  But  one  of  its  fruits 
has  been  to  force  upon  the  anxious  atteu- 
tion  of  all  those  who  justly  estimate  the 
value  of  our  j)olitical  institutions,  and  feel 
the  importance  of  preserving  them  as  they 
were  framed  and  handed  down  to  us  by  the 
fathers  of  the  Eepublic,  the  interesting 
problem  I  have  mentioned.  How  it  has 
happened  to  be  drawn  into  the  vortex  of 
party  warfare  remains  to  be  briefly  narrated. 
When  the  framers  of  the  Constitution, 
and  the  American  people  in  adoi)ting  it, 
deemed  it  wise,  for  greater  safety,  to  invest 
the  president  Avith  power,  "  on  extraordi- 
nary occasions,"  to  convene  Congress,  the 
wildest  imagination  could  not  have  pre- 
figured an  occasion  more  extraordinary 
than  that  of  the  condition  of  the  country 
at  the  accession  of  Mr.  Johxsox.    But,  for 


9 

reasons  which  I  abstain  from  any  attempt 
to  unfold,  ho  saw  fit,  like  a  daring  mariner, 
sailing'  forth,  without  chart  or  compass, 
upon  an  unknown  sea,  to  assume  the  high 
and  perilous  responsibility  of  dealing  with 
it  alone !  The  couutrj-,  wearied  with  the 
w^ar  and  rejoiced  at  its  termination  ; 
already  grown  familiar,  during  its  continu- 
ance, with  the  unavoidable  exercise  by  the 
executive  of  unusual  powers;  sensible  of 
the  novelty  and  i^erplexity  of  its  situation  ; 
and  half  confounded  by  the  audacity  of  the 
undertaking,  looked  on  in  apprehensive 
silence.  Some  alarm  was  created,  at  the 
outset,  by  the  frequency  and  vehemence 
of  the  president's  threats  of  punishment 
against  the  now  prostrate  rebels;  but  all 
fears  on  this  score  soon  gave  way  to  oth- 
ers still  more  alarming,  awakened  by  the 
sudden  and  almost  boundless  display  of 
clemency  on  his  part,  and  by  the  new-born 


10 

and  growing  fav^or  and  confidence  with 
wbicli  lie  began  to  be  nuiversally  regarded 
throughout  the  South,  and  by  its  friends 
and  advocates  elsewhere.  What  has 
since  come  to  be  familiarly  called  "  The 
President's  Policy,"  was  soon  developed. 
Throughout  the  loyal  States  there  was  an 
earnest  and  universal  desire  to  see  the 
insurgent  States  restored  to  their  original 
place  in  the  glorious  Union  thej'  had, 
through  four  years  of  bloody  strife,  done 
their  utmost  to  destroy,  as  soon  as  it  could 
be  done  with  safety.  This  was  due  to  the 
deluded  millions  of  the  South,  and  espe- 
cially to  those  who,  at  the  peril  of  life,  had 
remained  loyal  to  the  Union ;  it  was  for 
this  that  the  war  had  been  prosecuted  at 
a  cost  which  baffles  calculation,  and  tasks 
Imagination.  How,  with  a  just  regard  to 
the  impressive  lessons  of  the  past,  this 
could  be  accomplished,  was  the  great  prob- 


11 

lem  to  be  solved.  A  more  perplexing,  a 
more  pregnant,  a  more  momentous  ques- 
tion never  taxed  tlie  ingenuity  of  man.  It 
was  not  a  question  to  be  decided  by  men 
who  were  impatient  for  the  restoration  of 
the  seceded  states,  as  a  means,  by  their 
cooperation,  of  regaining  political  ascend- 
ency, regardless  of  all  other  consequences ; 
nor  by  men  who  had  devoted  their  worth- 
less lives  to  partisan  warfare,  however 
notorious  they  might  have  become  for  their 
skill  in  devices  to  carry  an  election ;  nor 
by  a  man  of  undisciplined  and  ill-balanced 
mind,  constantly  liable  to  be  swayed  by 
passions  strong  by  nature,  and  rendered 
stronger  by  habitual  indulgence,  however 
intelligent  and  patriotic.  Involving  the 
peace,  prosperity  and  happiness  of  count- 
less millions  of  our  race  on  this  continent, 
to  say  nothing  of  the  inlluence  of  our 
example   in   other  countries,  it  demanded 


12 

the  deliberate  exercise  of  all  the  intellect- 
ual and  moral  faculties  of  the  human 
mind,  enlightened  by  culture  and  reflec- 
tion. To  the  mind  of  the  president  the 
subject  naturally  presented  itself  under  an 
aspect  far  less  imposing.  Animated  by 
the  prevailing  desire  for  reconstruction ; 
favored  by  the  long  recess  of  Congress; 
coveting,  perhaps,  the  glory  of  the  achieve- 
ment, and  possibly  not  insensible  to  the 
allurements  of  a  less  elevated  ambition,  he 
resolved,  like  Alexander,  to  cut  the  Gor- 
dian  knot,  and  overlooking  or  disregarding 
the  lurking  dangers  of  the  enteri)rise,  to 
advance  at  once,  by  the  shortest  and 
easiest  road,  to  its  accomplishment.  He 
accordingly  proceeded  without  delay  to 
issue  an  order,  bearing  date  the  29th  of 
April,  for  the  restoration  of  commercial 
intercourse  with  the  people  of  the  insurrec- 
tionary States;  and  also,  under  the  same 


13 

(late,  a  proclamation  of  amnesty  and  par- 
don to  all  ^vho  Lad  participated  in  tlie 
rebellion,  with  tbe  exception  of  certain 
classes  of  persons,  who,  it  was  provided, 
might  nevertheless  make  special  api)lica- 
tion  for  i)ardon. 

But  the  most  significant  and  important  of 
the  series  of  acts  following  each  other,  in 
rapid  succession,  from  the  executive  depart- 
ment, were  the  measures  resorted  to  for  the 
reestablishment  of  State  governments  in 
subordination  to  the  Constitution,  in  place 
of  the  pseudo  State  organizations  under 
the  Constitution  of  the  Confederate  States. 
Assuming  that  this  could  not  be  done 
without  the  aid  and  sanction  of  the  national 
government,  the  president  seems  to  have  had 
as  little  doubt  of  his  authority  to  do  m  hat- 
ever  the  exigency  of  the  case  recpiired.  lie 
commenced  the  work  by  an  order  dated 
May  9tli,  "to  reestablish  the  authority  of 


14 

the  United  States,  and  execute  the  laws 
within  the  geographical  limits  known  as  the 
State  of  Virginia."  This  order  declares 
void  all  acts  of  the  insurrectionary  govern- 
ment within  the  designated  limits,  and 
cautions  all  persons  against  acknowledging 
its  authority,  under  pain  of  being  held  to  be 
in  rebellion  against  the  United  States ;  and 
after  various  directions  to  the  heads  of  the 
exective  departments,  and  to  the  judge  of 
the  district  court,  for  the  purpose  of  putting 
into  execution  the  laws  of  the  United  States, 
it  concludes  as  follows :  "that  to  carry  into 
effect  the  guaranty  of  the  Federal  Constitu- 
tion of  a  rei)ublicau  form  of  State  govern- 
ment, and  afford  the  advantage  and  security 
of  domestic  laws,  as  well  as  to  complete  the 
reestablishment  of  the  authority  of  the  laws 
of  the  United  States,  and  the  full  and  com- 
plete restoration  of  peace  within  the  limits 
aforesaid,  Fkancis  H.  Pieepo^'t,  Governor 


15 

of  the  State  of  Yirgiuia,  Mill  be  aided  by 
the  Federal  Government  so  far  as  maj'  be 
necessary  in  the  lawful  measures  he  may 
take  for  the  extension  and  administration 
of  the  State  government  throughout  the 
geographical  limits  of  said  State."  It  will 
be  seen  that,  in  relation  to  Virginia,  the 
President  availed  himself  of  a  State  organ- 
ization alread}'  in  existence.  It  was  the 
work  of  a  convention  composed  of  loyalists 
that  assembled  at  Alexandria  the  year 
before,  April,  18G4.  Its  history,  into  which, 
however,  it  is  unnecessary  to  enter,  would 
show  it  to  be  entitled  to  little  confidence ; 
but  it  served,  nevertheless,  as  a  pretext 
under  presidential  patronage  for  the  elec- 
tion of  representatives  and  senators  in  the 
thirty-ninth  Congress,  and  thus  unequivo- 
cally to  develop  "  the  President's  Policy." 

In  most  of  the  other  insurgent  States  no 
such  organizations  existed,  and   the  presi- 


16 

dent  lost  no  time  in  supplying  the  defi- 
ciency. And,  for  this  purpose,  he  resorted 
to  the  expedient  of  appointing  in  each  of 
them  an  oflScer  under  the  title  of  Provi- 
sional Governor,  charged  with  the  duty  of 
immediately  calling  a  convention  composed 
of  delegates  to  be  chosen  by  the  loyal  in- 
habitants, for  the  i3urpose  of  altering  or 
amending  the  Constitution  of  the  States. 
These  appointments  were  made  by  a  series 
of  successive  proclamations  following  each 
other  at  short  intervals,  and  are  understood 
to  have  been,  mutatis  mutandis,  in  the  same 
words.  The  first  of  the  series  was  that  re- 
lating to  North  Carolina,  bearing  date  the 
29th  of  May,  1865,  which,  it  will  be  remem- 
bered, is  also  the  date  of  the  proclamation 
of  amnesty  and  pardon.  It  commences 
with  a  i^reamble  setting  forth  the  views  of 
executive  authority  and  duty  entertained  by 
the  President,  and  by  which  he  professed  to 


17 

be  governed  in  resorting  to  the  step  be  was 
taking.  The  preamble  and  part  of  the 
first  paragraph  of  the  proclamation  are  in 
the  following  words : 

"  WiiKiiKAs,  The  fourth  section  of  the  fourth 
article  of  the  Constitution  of  the  United  States 
declares  that  the  United  States  shall  guarantee 
to  every  State  in  the  Union  a  republican  form  of 
government,  and  shall  protect  each  of  tliem 
against  invasion  and  domestic  violence;  and 
whereas  the  President  of  the  United  States  is,  by 
tlie  Constitution,  made  Commander-in-Chief  of 
the  army  and  navy,  as  Avell  as  chief  civil  execu- 
tive officer  of  the  United  States,  and  is  bound  by 
solemn  oath  faithfully  to  execute  the  office  of 
President  of  the  United  States,  and  to  take  care 
that  the  lues  be  faithfully  execaied ;^  and  Avhercas 
the  rebellion  which  has  been  waged  by  a  ]>ortion 
of  the  people  of  the  United  States  against  the 
properly  constituted  authorities  of  the  govern- 
ment thereof,  in  the  most  violent  and  revolting 


'  The  words  in  italics  are  not  in  the  oatb.  They  are  used 
clscwliore  in  the  Constitution  to  dL-si^nate  one  of  the  duties 
it  enjoins  upon  the  President.  The  italics  here,  and  in  all 
8ubsc(iuent  quotations  from  the  jjresideut,  are  niv  own. 


18 

form,  but  whose  organized  and  armed  forces  have 
now  been  abnost  entn-cly  overcome,  has,  in  its 
revohitionary  i)rogress,  deprived  the  people  of 
the  State  of  Nortli  Carolina  of  all  civil  govern- 
ment ;  and  Avhereas  it  becomes  necessary  and 
proper  to  cany  out  and  enforce  the  obligations 
of  the  United  States  to  the  people  of  Xorth 
Carolina,  in  securing  them  in  the  enjoyment  of  a 
republican  form  of  government : 

"  Now,  therefore,  in  obedience  to  the  high  and 
solemn  duties  imposed  upon  me  by  the  Constitu- 
tion of  the  United  States,  and  for  the  purpose  of 
enabling  tlie  loyal  people  of  said  State  to  organize 
a  State  government,  Avhercby  justice  may  be 
established,  domestic  tranquillity  insured,  and 
loyal  citizens  protected  in  all  their  rights  of  life, 
liberty  and  property,  I,  Andrew  Johnson,  Presi- 
dent of  the  United  States,  and  Commander-in- 
Chief  of  the  army  and  navy  of  the  United  States, 
do  hereby  appoint  "Willia:m  W.  Holden  Provi- 
sional Governor  of  the  State  of  North  Carolina, 
whose  duty  it  shall  be,  at  the  earliest  practicable 
period,  to  prescribe  such  rules  and  regulations  as 
may  be  necessary  and  proper  for  convening  a 
convention,  composed  of  delegates  to  be  chosen 
by  that  portion  of  the  people  of  said  State  who 


19 

arc  loyal  to  the  United  States,  ami  no  others,  for 
tIie'i)urpose  of  altering  or  amending  the  Constitu- 
tion thereof;  and  witli  authority  to  exercise, 
within  the  limits  of  said  State,  all  the  powers 
necessary  and  ])roper  to  enable  such  loyal  people 
of  the  State  of  Xorth  Carolina  to  restore  said 
State  to  its  constitutional  relations  to  the  Federal 
Government,  and  to  present  such  a  repuhlican 
form  of  State  government  as  will  entitle  the 
State  to  the  guarantee  of  the  United  States 
therefor,  ami  its  peo})lc  to  protection  Ijy  the 
United  States  against  invasion,  insurrection  and 
domestic  violence :  JProvided,''^  &c.,  designating 
the  qualifications  of  voters,  and  of  the  delegates 
to  be  chosen  to  form  a  convention.  Then  follows 
a  direction  to  "  the  military  commander  of  the 
department,  and  all  ollicers  and  persons  in  the 
military  and  naval  service,"  to  "aid  and  assist 
the  said  Provisional  Governor  in  carrying  into 
effect  this  proclamation." 

Like  proclamatious.  were  issued  for  the 
States  of  Mississippi,  Georgia,  Texas,  Ala- 
bama, South  Carolina,  and  Florida.  Ten- 
nessee, Arkansas  and  Louisiana  were  omit- 


20 

ted ;  political  organizations  spontaneously 
instituted,  deemed  by  the  President  suffi- 
cient for  his  purpose,  already  existing  in 
these  States.  In  pursuance  of  the  duty 
enjoined  upon  the  Provisional  Governors, 
conventions  were  held  and  Constitutions 
framed,  which,  however,  were  in  no  one  of 
the  States  suhmitted  for  apiyroval  to  the  peo- 
2)le.  In  North  Carolina  the  convention  as- 
sumed legislative  functions,  and  among 
other  acts  divided  the  State  into  congres- 
sional districts  and  i^rovided  for  the  elec- 
tion of  members  of  Congress,  which  result- 
ed in  the  choice  of  persons  who  had  acted 
a  conspicuous  part  in  the  civil  or  military 
service  of  the  conspirators  against  the  re- 
public. Two  persons  of  the  like  stamp 
were  also  appointed  senators.  A  like  re- 
sult followed  in  the  other  vStates. 

The  Georgia  convention  was  found  to  be 
comx)osed  exclusively  of  unpardoned  rebels. 


21 

but  the  untoward  emergency  was  promptly 
met  by  an  executive  telegram  to  "  send 
hither  the  list  of  members  elected  to  the 
convention,  in  order  that  pardons  may  be 
issued." 

These  conventions,  availing  themselves  of 
the  predicament  in  which  the  President  had 
so  adventurously  placed,  and  from  which 
they  saw  how  difficult  it  must  be  to  extri- 
cate, himself,  did  not  scruple  to  disregard 
and  thwart  his  known  wishes  and  requests. 
He  had  urged  not  only  the  repeal,  but 
the  utter  repudiation,  ah  initio,  of  the 
ordinances  of  secession,  and  the  formal 
rejiudiation  of  the  debts  incurred  in  i^rose- 
cuting  the  rebellion.  The  South  Carolina 
convention  refused  to  comply  with  either 
of  these  demands.  The  North  Carolina 
convention  demanded  the  abrogation  of 
the  oath  prescribed  l)y  the  proclamation 
of  amnesty  and  pardon.      The  Mississippi 


22 

convention  took  it  upon  themselves  to 
reject  the  pending-  amendment  to  the  Con- 
stitution proposed  to  the  States  at  the  last 
preceding  session  of  congress,  to  complete 
and  perfect  the  great  work  of  emanci- 
pation, commenced  by  the  memorable 
military  proclamation  of  the  murdered 
President,  by  the  final  abolition  of  human 
bondage  throughout  the  Union.  In  all  of 
the  conventions,  except  that  of  Xorth 
Carolina,  for  the  ill-concealed  i)urpose  of 
securing  a  pretext  for  a  claim  upon  the 
nation  to  compensate  ffiem  for  their  eman- 
cipated slaves,  slavery  was  declared  to 
have  been  '•^destroyed  l)i/  militanj  ])ower." 
Had  the  President  been  far  less  self-confi- 
dent and  sanguine,  he  must  have  seen  in 
these  discouraging  and  grotesque  results 
the  signal  failure  of  his  scheme;  and  had 
he  been  an  impartial  observer  of  their 
concomitant  incidents,  he  could  not  have 


23 

failed  to  see  that  it  had  proved  worse  than 
a  failure. 

The  final  extinction  of  the  rebellion,  and 
the  terrible  calamities  it  had  brought  upon 
its  votaries,  had  served  to  repress  the  arro- 
gant and  presumptuous  spirit  in  which  it 
had  its  origin,  and  had  found  its  main 
aliment,  and  to  inspire  a  hope  in  the  minds 
of  all  hunjane  and  patriotic  men  in  the 
loyal  States  of  a  sincere,  if  not  cheerful, 
acquiescence  on  the  part  of  the  late 
insurgents,  in  such  reasonable  terms  of 
restoration  as  the  outraged  nation,  through 
its  proper  representatives,  might  see  fit  to 
require.  But  emboldened  by  the  encour- 
agement held  out  by  the  "President's 
Policy,"  and  its  eager  and  ostentatious 
approval  b}"  their  numerous  partisans  in 
the  loyal  States,  they  soon  began  to  dis- 
play a  spirit  of  insubordination  and  hos- 
tility to  the  Union,  which,  unhappily,  seem 


24 

ever  since  to  have  been  on  the  increase, 
and  which,  extending  to  the  lowest  grades 
of  humanity,  has  naturally  led  to  the  per- 
petration of  many  revolting  atrocities. 

After  a  constrained  recess  of  nine 
months,  but  before  these  incidental  con- 
sequences of  the  presidential  policy  were 
fully  developed,  and  while  the  country 
was  still  but  imperfectly  informed  con- 
cerning its  details,  congress  assembled  in 
obedience  to  the   Constitution. 

As  the  president,  to  the  amazement  of 
the  whole  civilized  world,  yielding  himself 
np  to  the  dominion  of  passion,  has  seen 
fit,  in  a  long  series  of  violent  and  most 
unseemly  i)ublic  harangues,  commencing 
with  that  addressed  to  a  mob  assembled 
in  front  of  the  presidential  mansion,  on 
the  birthday  of  Washington,  to  denounce 
this  Congress  as  usurpers  and  imblic 
enemies,     to     deny    their    authority    and 


25 

encourage  disobedience  to  tlieir  enact- 
ments, it  may  not  l)e  amiss  to  pause 
liere  a  moment,  for  the  purpose  of 
exhibiting  tliis  unprecedented  conduct 
of  the  chief  magistrate  of  the  nation 
in  its  true  light.  It  ^vas  against  the 
large  rei)ublican  majorities  of  the  two 
houses  that  his  denunciations  were  exclu- 
sivel}^  hurled.  These  gentlemen  were 
elected  by  the  votes  of  the  same  great 
patriotic  party  to  which  Mr.  Joiixsox 
owed  his  own  elevation.  There  had  been 
no  manifestation  of  want  of  confidence 
or  dissatisfaction  on  its  part  toward  its 
chosen  representatives,  while  there  Mere 
abundant  indications  to  the  contrary.  The 
vituperations  heaped  upon  their  heads  fell, 
therefore,  also  upon  the  heads  of  those 
citizens  by  whose  votes  both  they  and 
the   president   himself   had    been    clothed 

with   power.      No    congress,    composed   of 
3 


26 

men  more  distingiiislied  for  ability,  prob- 
ity, and  noble  and  generous  sentiments, 
and  patriotic  devotion  to  the  present  and 
future  welfare  of  the  country,  had  ever 
assembled  within  the  walls  of  the  capitol. 
That  it  comprised  many  men  who,  in  all 
the  attributes  of  character  that  confer  a 
title  to  x>ublic  confidence  and  respect, 
were  Mr.  Johnson's  superiors,  no  intelli- 
gent and  candid  man  will  deny.  Such 
were  the  men  whom  he  has  not  scrupled 
thus  publicl}^  and  wantonly  to  arraign, 
insult  and  vilify. 

Eeverting  now,  from  this  brief  digression, 
to  the  meeting  of  Congress,  I  may  safely 
assume  that  the  republican  members,  dur- 
ing the  long  recess,  i)rofoundly  sensible 
of  the  weighty  responsibility  which  must 
eventually  rest  upon  their  shoulders,  were 
watching  the  proceedings  of  the  President 
with  lively  interest  and  anxious  concern. 


27 

It  was  impossible  to  approve,  but  they 
"were  inclined  to  be  hopeful,  and  were  ex- 
tremely averse  to  any  controversy  with 
him,  and  they  were  determined,  if  possible, 
to  win  him  over  to  cooperation  with  them- 
selves, in  a  safer  and  wiser  policy.  But, 
on  the  other  hand,  the}'  were  alive  to  the 
importance  of  the  trust  reposed  in  them, 
and  cherished  no  thought  of  shirking-  the 
l)erplexing  duties  it  imposed.  Supinely  to 
fold  their  arms  and  leave  the  president 
to  work  on,  without  scrutiny  or  show  of 
supervision,  would  have  been  not  only 
to  sleep  upon  their  post  in  the  hour  of 
danger,  but  to  abdicate  their  place  in  the 
government,  and  to  convert  it  into  an 
autocracy.  Such  was  the  temper  in  which 
congress  assembled.  It  was  the  duty  of 
the  president,  enjoined  by  the  Constitu- 
tion, to  inform  them  of  the  condition  of 
the  country,   and   to   recommend   to   their 


28 

consideration  such  measures  as  lie  deemed 
necessary  and  expedient.  His  annual  mes- 
sage was  accordingly  listened  to  with  lively 
interest.  Touching  the  great  i)roblem  of 
reconstruction,  he  informed  congress  that, 
upon  his  accession  to  the  presidency,  the 
rebellion  having  already  been  effectually 
suppressed  in  all  the  States  where  it  had 
raged,  the  first  question  that  presented 
itself  for  decision  was,  whether  the  territory 
within  the  limits  of  those  States  "  should 
be  held  as  conquered  territory,  under 
authoriUj  emanating  from  the  President  as 
the  head  of  the  armij ;^^  and  after  assigning 
the  reasons  which  constrained  him  to  reject 
that  alternative,  he  had,  "gradually  and 
quietly,  and  by  almost  imperceptible  steps, 
sought  to  restore  the  rightful  energj-  of  the 
general  government  and  of  the  States." 
"  To  that  end,"  he  adds,  "  Provisional  Gov- 
ernors have  been  appointed  for  the  States, 


29 

conventious  called,  governors  elected,  legis- 
latures assembled,  and  senators  and  repre- 
sentatives chosen  to  the  Congress  of  the 
United  States.  At  the  same  time  the  courts 
of  the  United  States,  as  far  as  could  be 
done,  have  been  reopened,  so  that  the  laws 
of  the  United  States  may  be  enforced 
through  their  agency."  *****  uj 
know  very  well,"  he  observes,  "  that  this 
policy  is  attended  with  some  risk  ;  that  for 
its  success  it  requires  at  least  the  acqui- 
escence of  the  States  which  it  concerns; 
that  it  implies  an  invitation  to  these  States, 
by  renewing  their  allegiance  to  the  United 
States,  to  resume  their  functions  as  States 
in  tlic  Union.  But  it  is  a  risk  that  must  bo 
taken  ;  in  the  choice  of  dilTiculties  it  is  the 
smallest  risk ;  and  to  diminish,  and,  if 
possil)lc,  to  remove  all  danger,  I  have 
felt    it    incumbent    on  nie  to    assert    ono 

other  power  of  the  general  government — 
3* 


30 

the  power  of  pardon."  He  further  informed 
Congress,  that  "  in  order  to  restore  the 
constitutional  relations  of  States,  he  had 
invited  them  to  particii^ate  in  the  high 
office  of  amending  the  Constitution,  by  rati- 
fying the  amendment  to  abolish  slavery;" 
and  he  adds,  that  "it  is  not  too  much 
to  ask  of  the  States  which  are  now  re- 
suming their  ]ilaces  in  the  family  of  the 
Union,  to  give  this  i)ledge  of  perpetual 
loyalty  and  peace."  Then  follows  this  pas- 
sage : 

"The  amendment  to  the  Constitution 
being  adopted,  it  would  remain  for  the  States 
whose  powers  have  long  been  in  abeyance, 
to  resume  their  places  in  the  two  branches 
of  the  national  legislature,  and  thereby 
complete  the  work  of  restoration."  And 
then,  with  what  may  appear  to  the  reader 
a  lofty  consciousness  of  courtly  condescen- 
sion, he  adds:    "  Here  it  is  for  you,  fellow- 


31 

citizens  of  the  Senate,  and  for  ijou,  fel- 
low-citizens of  the  House  of  llepresenta- 
tives,  to  judge,  each  for  yourselves,  of  the 
elections,  returns,  and  qualifications  of  your 
own  members."  The  i)Ower,  thus  conceded 
to  the  tAvo  houses,  the  reader  will  observe, 
is,  in  the  same  terms,  expressly  conferred 
upon  them  by  the  Constitution.  This  refer- 
ence to  it  was  doubtless  designed  to  smooth 
the  way  to  the  speedy  admission  of  the 
worthy  persons  who,  as  we  have  seen,  had 
been  chosen  to  represent  the  people  of  the 
States  which,  in  the  language  of  the  mes- 
sage, were  then  "  resuming  their  place  in 
the  family  of  the  Union;"  and,  witli  the 
exception  of  the  removal  of  a  formal  impedi- 
ment to  the  holding  of  a  circuit  court  in 
Virginia,  in  order,  among  other  things,  that 
"  the  truth  "  might  be  "  clearly  established 
and  aflirmed  that  treason  is  a  crime,"  and 
"  that  traitors  should  be  punished  and  the 


32 

offense  made  infamous,"  this  is  the  only 
legislative  power  which,  in  this  unprece- 
dented and  most  momentous  emergency, 
the  president  saw  fit  to  invoke !  And  even 
this  power,  when  it  came  to  be  exercised  by 
congress,  he  insisted,  ought  to  be  confined 
to  limits  so  narrow  as  to  render  it  virtually 
nugatory,  for  he  denied  that  it  afforded  any 
warrant  for  inquiry  into  the  political  condi- 
tion of  the  insurgent  States,  for  the  purpose 
of  ascertaining  whether  they  were  entitled 
to  be  represented  in  Congress,  or  even 
whether  the  elections  that  had  taken  place 
in  them  were  valid. 

It  soon  became  evident  that  a  great 
majority  of  the  two  houses  were  irrecon 
cilably  averse  to  the  President's  scheme. 
Their  objections  to  it  were  numerous  and 
insurmountable.  They  believed  that  in 
concocting  and  adopting  it,  he  had  assum- 
ed to  play  a  part  that  did  not  pertain  to 


33 

liis  office,  that  his  iutcrmcddliiig  had  been 
without  authority,  and  that  the  anomalous 
proceedings  he  had  set  on  foot  in  the  States 
were  liot  binding  on  tlieir  inhabitants ; 
that  even  if  they  were  at  liberty  to  over- 
look these  grave  objections,  it  would  bo 
premature,  and  to  the  last  degree  hazard- 
ous and  unwise,  at  once  to  admit  the  per- 
sons who  had  been  chosen  in  the  States  so 
lately  in  oiien  insurrection  against  the  gov- 
ernment, to  seats  in  congress;  that  to  allow 
these  States  to  resume  their  original  i)lace 
in  the  Union,  without  additional  safeguards 
against  intolerable  evils  likely  otherwise  to 
ensue,  would  be  heedlessly  and  unnecessa- 
rily to  jeopard  all  that  had  been  gained 
by  the  suppression  of  the  rebellion  ;  to  in- 
vite new  disasters ;  and,  in  short,  wantonly 
and  wickedly  to  sport  with  the  destinies  of 
the  nation.  Congress  according!}'  determ- 
ined to   institute  an    original    and    search- 


34 

ing  investigation  comprising  all  the  ele- 
ments of  the  new  and  perplexing  problem, 
which  it  was  their  unavoidable  duty  to 
grapple  with  and  to  solve.  A  joint  com- 
mittee was  therefore  appointed  "  to  inquire 
into  the  condition  of  the  States  which 
formed  the  so-called  confederate  States  of 
America,  and  report  whether  they,  or  any 
of  them,  are  entitled  to  be  represented  in 
either  house  of  congress."  With  unsur- 
passed industry  and  impartiality  this  com- 
mittee collected  a  vast  mass  of  information 
drawn  from  numberless  witnesses,  among 
whom  were  several  who  had  played  a  very 
cons]3icuous  x)art  among  the  chief  actors  in 
the  late  rebellion. 

"The  policy  of  congress"  was  gradually 
matured  and  developed.  A  bill  was  passed 
by  the  two  houses  extending,  and  other- 
wise modifying,  the  act  passed  at  the  last 
preceding   session  for  the  relief  of  freed- 


35 

men  and  refugees.  It  was  returued  by 
tlic  ppesideut  on  the  IDth  of  February, 
without  his  approval,  accompanied  by  a 
message,  in  Avhich  he  availed  himself  of 
the  opportunity  to  maintain  and  fortify 
his  scheme  of  reconstruction,  and  in  which, 
referring  to  the  termination  of  the  civil 
war,  he  peremptorily  denied  the  right  of 
congress  "  to  shut  out,  in  time  of  peace, 
any  State  from  the  representation  to  which 
it  is  entitled  by  the  constitution."  The 
bill  was  again  passed  by  the  House  of 
Representatives,  notwithstanding  the  Presi- 
dent's objections,  by  the  votes  of  more 
than  three-fourths  of  the  members  present ; 
but  failing  to  receive  the  requisite  vote  in 
the  Senate,  it  failed  to  become  a  law. 
Another  bill  was  passd,  entitled  "  An  act 
to  protect  all  persons  in  the  United  States 
in  their  civil  rights,  and  to  furnish  the 
means  of  their  vindication."    This  bill  met 


36 

•\Yitli  a  like  reception  at  tlie  hands  of  the 
president,  but  became  a  law  by  the  votes 
of  two-thirds  of  the  members  of  each  house, 
notwithstanding-  his  objections.  The  joint 
committee  at  length  made  an  elaborate  and 
very  able  report,  in  which,  without  imiiugn- 
ing  the  president's  motives,  they  point- 
edly condemned  his  proceedings  as  unwise, 
and  as  unwarranted  by  the  constitution 
or  the  laws  of  the  Union.  The  report 
was  accompanied  by  a  proposed  amend- 
ment to  the  constitution,  which,  after  an 
exhausting  discussion  in  both  houses,  w\as 
adopted,  and  submitted  to  the  States  for 
ratification.  It  embodies  the  mildest  terms 
and  conditions  on  which,  in  the  opin- 
ion of  congress,  it  was  either  just  or 
safe  to  reinvest  the  seceding  States  with 
their  lost  rights  and  privileges,  as  consti- 
tuent members  of  the  Union.  It  declares, 
in     substance,    that     the     duskj'    millions 


37 

who  bad  been  our  allies  in  tbe  war, 
wbo  bad  by  our  act  been  liberated  from 
bondage,  and  to  wbom  tbe  foitb  of  tbe 
nation  stood  pledged  for  tbe  full  enjoyment 
of  tbeir  freedom,  bad  a  just  claim  to  tbe 
formal  and  autboritative  acknowledgment 
of  tbeir  citizensbip,  and  to  security  against 
bostile  and  oppressive  State  legislation  ; 
tbat  in  tbose  States  in  wbicb  tbeir  rigbt  to 
vote,  in  common  witli  men  of  tbe  wbite 
races,  sbould  be  witbbeld  from  tliem,  tbey 
sball  not  be  counted  in  tbe  apportionment 
of  representatives  in  congress :  tbat  no 
person  wbo,  as  a  member  of  congress,  or  of 
a  State  legislature,  or  as  an  officer  of  tbe 
United  States,  or  as  an  executive  or  judicial 
officer  of  a  State,  after  baving  taken  tbe 
oatb  to  support  tbe  constitution  of  tbe 
United  States,  sball  bave  engaged  in  insur- 
rection or  rebellion  against  tbe  same,  sball 

be  a  senator,  or  representative  in  congress, 
4 


38 

or  elector  of  President  and  Vice-President, 
or  hold  any  office,  civil  or  military,  under 
the  United  States,  or  any  State :  that  the 
validity  of  the  public  debt  of  the  United 
States  shall  not  be  questioned :  that  neither 
the  United  States  nor  any  State  shall  as- 
sume or  pay  any  debt  or  obligation  incurred 
in  aid  of  insurrection  or  rebellion  against 
the  United  States,  or  any  claim  for  the  loss 
or  emancipation  of  slaves ;  but  that  all  such 
debts  and  obligations  shall  be  held  illegal 
and  void:  and  lastly,  that  congress  shall 
have  power  to  enforce  these  provisions  by 
appropriate  legislation. 

Three  of  the  members  of  the  committee 
withheld  their  assent  from  the  report,  and 
made  a  report  declaring  their  approbation 
of  the  President's  iiroceedings,  and  citing 
two  judicial  decisions :  one  by  the  district 
judge  of  Massachusetts,  and  the  other  by 
one  of  the  justices  of  the  supreme  coiu^t. 


39 

in  support  of  tliem.  The  first  of  these  de- 
cisious  appears  to  me  entirely  sound,  ^vitli 
the  exception  of  one  of  its  propositions, 
Avhich  seems,  at  least,  to  require  qualifica- 
tion. The  observation  to  which  I  refer  is 
this :  "  AVhen  the  United  States  take  pos- 
session of  a  rebel  district,  they  merely 
vindicate  their  preexisting  title.  Under 
despotic  governments,  confiscation  may  be 
unlimited,  but  under  our  government  the 
right  of  sovereignty  over  any  portion  of  a 
State  is  given  and  limited  by  the  Constitu- 
tion, and  icill  he  the  same  after  the  war  as  it 
was  'before.''''  It  is  to  this  last  clause  that  I 
take  exception.  That  the  right  of  sov- 
ereignty' will  eventually,  upon  final  adjust- 
ment, become  the  same  as  it  was  before,  is 
indisputable  ;  and  this,  I  suspect,  is  all  that 
this  learned  and  able  judge  designed  to  be 
understood  to  say :  l)ut  if  the  i)roposition  is 
to  be  considered  as  implying  a  denial  to  the 


40 

government  of  the  right  to  prescribe  terms, 
as  conditions  precedent  to  its  recognition  of 
this  change  —  tliis  return  to  the  status  ante 
'bellum  —  I  cannot  assent  to  it.  The  other 
opinion,  which  seems  to  the  dissentients 
"  evidently  carefully  prepared,"  though 
sadly  wanting  in  perspicuity^  appears, 
however,  to  be  explicit  upon  this  j)oiut, 
and  upon  some  others  also,  concerning 
which  the  majority  of  the  committee 
arrived  at  opposite  conclusions. 

Eeferring  to  "  the  provisional  govern- 
ment "  that  had  been  "  appointed "  by  the 
President  in  South  Carolina,  his  honor  is 
represented  to  have  said:  "In  operation 
[virtue?]  of  this  appointment,  a  new  Con- 
stitution had  been  formed,  a  governor  and 
legislature  elected  under  it,  and  the  State 
])lace(l  in  the  full  enjoyment,  or  entitled  to  the 
full  enjoyment,  of  all  her  constitutional  rights 
and  2)rivileges.    The  constitutional  laws  of 


41 

the  Union  were  thereby  enjoyed  and  obeyed, 
.and  were  as  authoritative  and  binding  over 
the  people  of  the  State  as  in  any  other 
portion  of  the  country.  Indeed,  the  moment 
the  rebellion  was  suppressed,  and  the  govern- 
ment growing  out  of  it  subverted,  the 
ancient  laivs  resumed  their  accustomed  sway, 
subject  only  to  the  new  reorganization  hy  the 
appointment  of  the  proper  officer  to  give  them 
operation  and  effect P^ 

Considering  that  tlie  "  ancient "  constitu- 
tion of  South  Carolina,  and  all  its  laws 
having  any  reference  to  the  ancient  Union, 
had  been  consigned  to  the  flames,  and  that 
the  provisional  government  was  not  insti- 
tuted until  many  months  after  the  rebellion 
was  suppressed,  the  "  operation "  ascribed 
to  it  by  his  Honor,  in  this  pheuix-like 
resurrection,  must,  to  ordinary  minds,  seem 
magical ;    but    hardly   more    so    than    the 

authority  ho  ascribes  to  the  President,  in 
4* 


42 

anotlicr  part  of  his  opiiiioD,  as  Com- 
mander-in-Chief of  the  army  and  navy  in 
time  of  peace. 

The  amendments  proposed  by  the  com- 
mittee meeting  with  open  and  determined 
hostility  from  the  President  and  his  parti- 
sans, who  still  adhered,  with  unyielding 
pertinacity,  to  his  plan  of  immediate  and 
unconditional  admission,  it  became  the 
rallying-point  of  the  republican  party  at 
the  late  elections,  and  has  thus  received  the 
emphatic  approval  of  the  people. 

But  the  supporters  of  the  president, 
comprising  the  whole  democratic  party, 
which,  with  great  unanimity,  had  gone 
over  to  his  support,  and  a  comparatively 
small  number  of  deserters  from  the  Eepub- 
lican  ranks,  constituted  a  very  large  mi- 
nority, who  not  only  condemned  the  pro- 
posed amendment,  but    unanimously  and 


43 

strennousl}^    defended    the    president,    and 
applauded  all  that  he  had  done. 

Thus  it  was  that  the  momentous  question 
of  executive  power  became  involved  in  the 
mazes  of  party  strife;  and  here  I  gladly 
terminate  this  introductory  narrative,  which, 
summary  as  it  is,  I  fear  may  prove  tedious 
to  the  reader. 


The  Constitution  of  the  United  States  is 
obviously,  and  doubtless  was  intentionally, 
modeled  after  that  of  our  English  ances- 
tors. It  accordingly  distributes  the  iiowers 
of  government  among  three  distinct  de- 
partments. Upon  this  vital  i)oint  there 
does  not  appear  to  have  been  any  divers- 
ity of  opinion  in  the  convention  by  which 
,it  was  framed.  Everything  else  elicited 
coutroversv   and    earnest    discussion ;    and 


44 

among  the  numerous  grave  questions  which 
presented  themselves  for  decision,  none 
was  found  more  perplexing  than  the 
organization  and  powers  of  the  executive 
department.  The  lessons  of  history,  col- 
lectivel}^  were  discouraging;  and  except 
by  the  impressive  evidence  they  afforded 
of  the  extreme  delicacy  and  difficulty 
of  the  task,  and  of  the  necessity  of  a 
correspondent  degree  of  circumspection,  the 
light  they  shed  upon  the  subject  was  dim. 
It  was  finally  decided  that  "  the  executive 
power"  should  be  "vested  in  a  President 
of  the  United  States  of  America,"  who 
should  "  hold  his  office  during  the  term  of 
four  years."  This  is  declared  by  the  first 
section  of  the  second  article  of  the  consti- 
tution, and  after  prescribing  the  mode  of 
election,  the  qualifications  as  to  citizenship, 
age,  and  length  of  residence,  requisite  to 
eligibility,   and    regulating  the    succession 


45 

ill  case  of  the  removal,  deatli,  resignation 
or  iuabilty;  and  the  compensation  of  the 
I)resident;  tlie  section  concludes  hy  pre- 
scribing the  form  of  an  oath  or  affirmation 
which  he  shall  be  required  to  take  before 
he  enters  upon  the  execution  of  his  office, 
in  the  following  words:  "I  do  solemnly 
swear  (or  affirm)  that  I  will  faithfully  exe- 
cute the  office  of  president  of  the  United 
States,  and  will,  to  the  best  of  mj'  ability, 
preserve,  protect  and  defend  the  Constitu- 
tion of  the  United  States." 

It  was  decided,  also,  that  the  president 
should  "  be_jDommander-iii-Chief  of  the 
army  and  navy  of  the  United  States,  and 
of  the  militia  of  the  several  States,  when 
called  into  the  actual  service  of  the  United 
States."  This  is  declared  l)y  the  first  sub- 
division of  the  second  section  of  the  same 
article,  which  then  proceeds  specifically  to 
invest   the  president  with   certain  powers, 


4G 

and  to  charge  liim  with  certain  duties,  as 
follows:  "He  may  require  the  opinion,  in 
writing,  of  the  principal  oflScer  in  each  of 
the  executive  departments,  upon  any  sub- 
Sz  ject  relating  to  the  duties  of  their  respect- 
^^ ive  offices ;  and  he  shall  have_  power  to 
grant  reprieves  and  iDardons  for  offenses 
against  the  United  States,  except  in^cases 
of  impeachment. 

"2.  He  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  senate,  to  make 
n^  treaties,  provided  two-thirds  of  the  senators 
present  concur;  and  he  shall  nominate,  and 
by  and  with  the  advice  and  consent  of  the 
senate,  shall  appoint  embassadors,  other 
j)ublic  ministers  and  consuls,  judges  of_the_ 
Supreme  Court,  and  all  other  oflScers  of 
the  United  States  whose  appointment  is  not 
otherwise  herein  provided  for,  and  which 
shall  be  established  by  law.  But  congress 
may,  by  law,  vest  the  appointment  of  such 


47 

inferior  ofBcers  as  they  think  proper  in  the 
president  alone,  in  the  courts  of  kiw  or  in 
the  heads  of  departments. 

*'  3.  The  president  shall  have  power  to  fill 
ui)  all  vacancies  that  may  happen  dm'ing- 
the  recess  of  the  senate,  by  grantin<»-  com- 
missions, which  shall  expire  at  the  end  of 
their  next  session." 

The  third  section  contains  and  concludes 
this  enumeration  as  follows:  "He  shall  from 
time  to  time  give  to  the  congress  such 
information  of  the  state  of  the  Union,  and 
recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and 
expedient.  He  may,  on  extraordinary 
occasions,  convene  both  houses,  or  either 
of  them ;  and  in  case  of  disagreement 
between  them,  Mith  respect  to  the  time 
of  adjournment,  he  may  adjourn  them  to 
such  time  as  he  shall  tliink  proper.  lie 
shall  take  care  that  the  laws  be  faithfully 


48 

executed,  and  shall  commission  all  the 
officers  of  the  United  States." 

The  fourth  section  ordains  that  "  the 
president,  vice-president,  and  all  civil  offi- 
cers of  the  United  States,  shall  be  removed 
from  office  on  impeachment  for  or  on  con- 
viction of  treason,  bribery,  or  other  high 
crimes  and  misdemeanors." 

By  the  first  article,  organizing  the  legis- 
lative department,  the  ijresident  is  vested 
with  a  qualified  negative  upon  all  bills,  and 
all  orders,  resolutions  or  votes  (except  on 
a  question  of  adjournment)  requiring  the 
concurrence  of  the  two  houses.  The  nature 
and  limits  of  this  power  are  too  well 
known,  under  the  name  of  the  veto  power, 
to  require  further  definition. 

Such  is  the  organization  of  the  executive 
department  of  the  government  as  estab- 
lished by  the  organic  law.  I  trust  the 
reader  will   discern  in   the  sequel,  a  suffi- 


49 

cieiit  apology  for  my  literal  transcription 
of  tlie  whole  of  this  part  of  it,  however 
familiar  to  him  it  may  have  already  been. 


And  now,  what  I  desire  in  the  first 
place  to  bring-  to  his  attention,  is  the 
discrimination  made  in  terms,  and  so  studi- 
ously adhered  to  throughout,  as  altogether 
to  exclude  the  supposition  of  accident 
between  the  Powers  and  the  Duties  of  the 
president.  I  am  not,  I  frankly  acknowl- 
edge, aware  that  this  distinction  has  been 
noticed  by  any  other  commentator  upon 
the  constitution,  Avhether  in  writing  or  in 
oral  debate  ;  but  I  deem  it  so  important 
that,  at  the  expense  of  some  repetition, 
and  at  the  hazard  of  the  imputation  of 
arrogance,   I   will    endeavor,   not    only   to 

establish  the  truth  of  my  assertion  that  it  is 
5 


50 

distinctly  recognized  and  unequivocally  ex- 
I)ressed  in  the  constitution,  but  to  demon- 
strate its  propriety.  Let  us  revert,  then,  to 
the  article  in  question,  as  given  above.  It 
is  unnecessary  to  observe  the  order  of  the 
rather  illogical  arrangement  of  the  several 
clauses,  and  it  will  be  conducive  to  perspi- 
cuity to  begin  with  the  second  subdivision 
of  the  second  section :  "  He  sliaTl  have  power , 
by  and  with  the  advice  and  consent  of  the 
senate,  to  make  treaties,  provided,"  «S:c. ; 
and  then,  separated  only  by  a  semicolon, 
follows  this  clause :  "  and  he  sliall  nomi- 
nate, and  by  and  with  the  advice  and 
consent  of  the  senate,  sludl  appoint,"  &c. 
Why  this  change  of  phraseology  in  one 
and  the  same  sentence  ?  Evidently,  because 
the  negotiation  of  treaties  was  to  be  fortui- 
tous and  discretionary  ;  while  api)ointments 
to  office  were  matter  of  certain  and  absolute 
necessity.    While,  therefore,  the  language 


51 

of  the  lirst  clause  is,  so  to  speak,  merely 
imUntial,  that  of  the  second  was,  unavoid- 
ably, mandatory ;  for  so  it  must,  of  necessity, 
have  been  interpreted,  even  if,  like  that  of 
the  preceding  clause,  it  had,  in  form,  been 
permissive,  for  it  is  only  by  means  of  its 
official  organs  that  a  government  can  be 
maintained.  Let  us  now  attend  to  the 
language  of  the  provision  for  the  filling  of 
vacancies.  It  is  the  3d  subdivision  of  the 
same  section.  Here  we  find  a  repetition  of 
the  words  employed  in  conferring  the  power 
to  make  treaties :  "  The  president  shall 
have  i)ower  to  fill  up  all  vacancies,"  &c. 

The  language  is  permissive,  because  it 
was  foreseen  that  vacancies  were  likely, 
from  time  to  time,  to  occur,  which  it  would 
be  more  discreet  to  leave  unfilled  until  the 
next  session  of  the  senate.  The  session 
might  be  very  near  at  hand ;  the  office  might 
be  one  of  great  importance,  and  might,  nev- 


52 

ertheless,  be  temporarily  left  vacant  without 
serious  detriment  to  the  public  interests ; 
or,  it  might  arise  from  the  death  of  a  minis- 
ter in  a  distant  country,  to  which  it  would 
be  unwise  immediately  to  dispatch  a  suc- 
cessor, who  might  prove  unacceptable  to 
the  senate.  But  in  addition  to  the  nomi- 
nation by  the  president,  and  the  consent 
of  the  senate,  another  act  is  requisite  to 
render  the  appointment  of  officers  com- 
plete. They  could  not  safely  enter  upon 
the  execution  of  their  official  duties  with- 
out evidence  of  their  authority,  and  it  was 
necessary,  therefore,  to  provide  for  the 
issuing  of  commissions ;  and,  this  being 
matter  of  necessity,  the  language  of  com- 
mand is  accordingly  again  resorted  to. 
The  i^resident  '*  shall  commission  all  offi- 
cers of  the  United  States,"  is  the  phrase- 
ology emi^loyed.  As  with  respect  to  nomi- 
nations   to    the    senate,    so    here,    it    was 


53 

not  suflQcieut  to  empoiver  the  president 
to  commission  his  appointees,  it  was  neces- 
sary to  require  this  of  him  as  a  duty, 
for  the  fulfillment  of  which  he  would 
be  responsible.  Again,  it  is  ordained  that 
"  the  president  may  require  the  opinion,  in 
writing,  of  the  principal  officer,"  &c. ;  that 
"he  shall  have  potccr  to  ^rant  reprieves 
ajid  pardojxsj  and  that  he  may,  on  extra- 
ordinary occasions,  convene  both  houses 
or  either  of  them  ;  and  that,  in  a  certain 
improbable  contingency,  he  "  may  adjourn 
them."  In  each  of  these  instances  the 
reason  for  using  the  phraseology  adopted, 
is  too  evident  to  require  elucidation.  But 
then,  upon  the  other  hand,  it  is  ordained 
that  the  president  "  shall,  from  time  to 
time,  give  to  congress  information  of  the 
state  of  the  Union,  and  sliall  recommend 
to  their  consideration  such  measures  as 
he  shall  judge  necessary  and  expedient;" 


54 

that  "he  shall  receive  embassadors  and 
other  public  ministers ;"  (tliat  is  to  say, 
unless  he  shall,  for  some  special  reason, 
be  of  opinion  that  the  minister  sent 
ought  not  to  be  received  at  all ;)  and 
lastly,  *'  that  he  shall  take  care  that  the 
laws  be  faithfully  executed."  The  reason, 
in  all  these  cases,  for  emjjloying  this 
mandatory  form  of  expression,  is  no  less 
obvious.  These  were,  in  their  nature, 
absolute  duties,  depending  upon  no  con- 
tingencies, and,  as  to  their  performance  or 
omission,  subject  to  no  discretion. 

Assuming,  as  the  result  of  this  analysis, 
as  I  hope  I  may  do,  that  I  have  established 
the  fact,  and  shown  the  propriety  of  the 
distinction  on  which  I  insist,  I  have,  in  the 
next  place,  to  observe  that,  with  the  excep- 
tion of  the  military  authority  conferred 
upon   the    president    by  constituting   him 


55 

cominauder-iu-cliief,  not  one  of  the  dcsig 
nated  powers,  unless,  perbaps,  the  power 
of  appointment,  is  in  its  nature  executive; 
and  that,  with  tbe  exception  of  the  power 
of  convening  congress,  the  comparatively 
unimportant  one  of  requiring  the  opinions 
in  writing,  of  the  heads  of  departments, 
and  the  veto,  all  of  them  might,  without 
inconsistency,  have  been  lodged  elsewhere. 
And  hence  arises  the  important  question 
whether  the  designation  of  the  president 
as  the  depository  of  "  the  executive  power  " 
is  to  be  regarded  as,  in  itself,  a  source  of 
power. 

I  have  a  vague  recollection  of  a  disserta- 
tion in  some  form,  which  I  cannot  recall,  on 
the  powers  of  the  executive,  during  the  ad- 
ministration of  iiresident  Jackson,  in  which 
powers  were  claimed  for  him  as  deriv- 
able from  this  source.  But  I  have  wholly 
forgotten  the  argument  in  support  of  this 


5G 

claim.  And,  with  this  exception,  if  it  be 
one,  I  have  met  with  no  direct  discussion  on 
the  subject,  except  in  a  speech  of  Mr.  Web- 
ster in  the  senate,  to  which  I  design  more 
particularly  to  refer,  in  the  sequel,  in  treat- 
ing of  the  power  of  removal.  He  denied 
to  the  president,  without  qualification,  any- 
other  powers  except  those  specified  in  the 
constitution.  His  designation  as  the  depos- 
itary of  the  executive  power,  he  insisted,  is 
only  equivalent,  in  import,  to  the  designa- 
tion of  congress  as  the  depository  of  the 
legislative  power,  and  confers  no  power  at 
all.  It  is  abundantly  noteworthy  also,  that, 
as  far  as  I  recollect,  these  specified  powers 
are  the  only  ones  asserted  and  expounded 
as  belonging  to  the  executive  department, 
by  the  writers  of  the  Federalist,  whose  well- 
known  object  it  was  to  induce  the  people  of 
the  several  States  to  accept  the  constitution 
as  it  came  from  the  hands  of  its  framers, 


57 

and,  to  that  end,  to  make  it  well  under- 
stood. On  the  other  hand,  in  the  animated 
and  elaborate  discussion  which  took  place 
in  the  first  congress,  in  1789,  on  the  subject 
of  the  power  of  removal  from  office,  to 
which  I  shall  have  occasion  also  again 
to  advert,  it  was  argued  that  the  power 
of  removal  was  vested,  by  implication,  in 
the  i)resident,  as  a  part  of  the  executive 
power;  and  a  majority  of  the  house  of 
representatives,  including  Mr.  Madisox, 
appear  to  have  concurred  in  that  construc- 
tion. This  construction  has,  moreover,  the 
weighty  support  of  that  learned  and  able 
jurist,  the  late  Chancellor  Kent,  in  treating 
of  the  power  of  removal  in  his  Commenta- 
ries. With  this  exception,  however,  both 
he  and  the  late  Mr.  Justice  Story  follow  the 
example  of  the  Fedo-alist,  in  limiting  their 
exposition  of  the  powers  of  the  executive  to 
those  specified  in  the  Constitution,  as  above 


58 

enumerated.  And  in  this  predicament,  as 
far  as  1  am  aware,  this  great  question 
now  stands,  and  is  accordingly  open  to  the 
freest  discussion. 

I  have  already  said  that  the  distinction 
so  clearly  recognized,  and  so  carefully 
adhered  to,  in  the  Constitution,  between 
the  powers  and  duties  of  the  president,  is 
left  unnoticed  by  all  these  writers  :  but  it  is 
hardly  necessary  to  add,  that  in  treating 
of  the  powers  of  the  executive,  they  have 
by  no  means  limited  themselves  to  those 
which  I  have  classified  as  such,  to  the  ex- 
clusion of  the  powers  implied  in  the  duties  I 
have  designated  under  that  name.  On  the 
contrary,  they  treat  of  them  indiscriminate- 
ly, and  thus,  illogically  and  erroneously,  as 
I  think,  confound  them.  It  cannot  be  rea- 
sonably supposed  that  the  primary  object  of 
the  founders  of  the  government,  in  specifi- 
cally   and    peremptorily    enjoining    duties 


59 

upon  tlie  president,  was  to  confer  tbo 
powers  requisite  to  tlieir  performance;  nor 
is  it  probable  tbat  tbey  designed  to  leave 
these  powers  to  rest  upon  the  ground  of  in- 
ference alone.  If  not,  then  we  are  to  look 
elsewhere  for  their  source.  And  where  else 
can  it  be  found  except  in  the  declaration 
at  the  outset,  that  the  executive  power 
should  be  vested  in  the  president  ?  The 
theory  that  this  was,  in  fact,  regarded  as 
the  source  of  his  executive  authority,  serves 
at  once  to  explain  the  patent  and  exact 
discrimination  between  powers  and  duties, 
and  to  vindicate  its  propriety  and  logical 
necessitj" ;  and,  as  far  as  I  am  able  to 
discern,  this  is  the  only  explanation  it 
admits  of.  It  serves  also,  I  think,  to  sim- 
plify and  facilitate  the  interpretation  of 
this  part  of  the  constitution. 

The  most  comprehensive  and  important 
of  all  the  duties  enjoined  upon  the  i)resi- 


GO 

dent  is  that  of  seeiug  that  the  laws  be 
faitlifully  executed.  It  strictly  i)ertains  to 
the  executive  department,  and  constitutes 
its  paramount  if  not  sole  distinctive  civil 
function.  But  is  the  president  to  look  to 
this  injunction  as  the  source  of  his  author- 
ity to  perform  the  dutj^  ?  Let  us  see 
whether  it  may  not  more  reasonably  be 
deduced  from  the  allotment  to  him  of 
the  executive  power.  There  certainl}'  is 
nothing  in  the  words  of  the  injunction  in- 
consistent with  this  interi)retation  ;  but,  on 
the  contrary,  they  appear  to  me  to  favor  it. 
The  president  "is  to  take  care  that  the 
laws  be  faithfully  executed."  I  see  nothing 
fanciful  in  the  supposition  that  this  lan- 
guage has  reference  to  the  power  of  ap- 
pointment, and  that  it  was  suggested  by  the 
disposition  of  that  power,  which,  as  we 
have  seen,  is  in  effect  confided  to  the  pres- 
ident.    Seeing  that,  in  exercising  his  exec- 


Gl 

utive  functions,  be  must  of  necessity  act 
chiefly  tbrougli  the  instrumentality  of  sub- 
ordinate ofRcers  of  bis  own  appointment,  it 
was  deemed  fit  express!}'  to  enjoin  it  upon 
him  to  be  careful  in  the  selection  of  these 
oflicers,  and  to  see  that  they  were  faithful 
in  the  discbarge  of  their  duties.  The  oath, 
couched  in  imposing  language,  chosen, 
doubtless,  for  the  purpose  of  rendering  it 
the  more  solemn  and  impressive,  requires 
a  similar  interpretation. 

In  support  of  this  construction,  I  think  I 
may  fairly  invoke  the  authority  of  the  first 
congress,  and  of  Kent,  in  virtue  of  the 
decision  of  the  former,  concurred  in  by  the 
latter,  that  the  power  of  removal  from  oflice, 
concerning  which,  as  we  have  seen,  the 
constitution  is  silent,  being,  in  its  na^n'O, 
an  executive  power,  is  to  be  considered  as 
one  of  the  powers  confided  to  the  president 

as  the  depository  of  the  executive  i)ower  — 
6 


62 

the  question  now  being,  not  as  to  the  extent, 
but  as  to  tlie  existence  of  such  i)owers.  But 
if  one  power  be  traceable  to  that  source,  it 
must  comprehend  all  kindred  i^owers.  The 
omission  of  any  formal  discussion  of  it  by 
the  Federalist,  and  by  succeeding  comment- 
ators, is  not  inconsistent  with  the  supposi- 
tion of  their  belief  in  it.  It  is  not  to  be 
supposed  that  the  subject  never  occupied 
their  thoughts,  and  it  may  reasonably  be 
concluded  that  if  they  had  been  of  opinion 
that  the  president  was  possessed  of  no  such 
powers,  they  would  have  denied  their  exist- 
ence. But  other  reasons  may  be  assigned 
for  their  silence.  The  American  people,  by 
their  acquaintance  with  the  English  consti- 
tution, and  with  the  organization  and 
operation  of  the  State  governments,  all  of 
which  comprised  distinct  executive  as  well 
as  legislative  departments,  had,  before  the 
formation  of  the  constitution,  already  be- 


63 

come  familiar  uitli  the  distinctive  nature  of 
executive  power.  It  was  not  legislative, 
nor  was  it  judicial.  Its  function  was,  not 
to  make  or  expound  the  laws,  but  to  execute 
them. 

"  The  executive,"  wrote  Eogek  Sherman, 
from  the  convention  of  which  he  was  a 
member,  in  answer  to  a  friendly  letter  from 
the  elder  Adams  objecting  to  the  participa- 
tion of  the  senate  in  the  power  of  appoint- 
ment to  office,  "  the  executive  is  not  to 
execute  its  own  will,  but  the  Avill  of  the 
legislature  declared  by  the  laws." ' 

This  was  a  fundamental  principle  of 
the  English  constitution,  as  well  as  of  the 
American  constitution.  It  was  by  the 
persistent  assumption  of  powers  without 
warrant  of  law  that  Charles  I.  lost  his 
head,  and  James  II.  Mas  driven  from  his 

'  Pitkin's  History,  vol.  2,  p.  289. 


64 

throne.  "  The  prhicipal  duty  of  the  king," 
says  Sir  William  Blackstone,  "is  to 
govern  his  people  according  to  law."  "The 
king,"  said  Bracton  (who  wrote  under  the 
reign  of  Henry  III.),  "  hath  also  a  superior, 
namely,  God,  and  also  the  law ;"  and  in  his 
coronation  oath,  the  King  of  Great  Britain 
solemnly  promises  to  govern  the  people  of 
his  kingdom  "  according  to  the  statutes  in 
parliament  agreed  on,  and  the  laws  and 
customs  of  the  same." 

The  subordination  of  the  executive  to 
the  legislative  department  of  the  govern- 
ment, then,  is  a  fundamental  and  indis- 
putable principle.  A  systematic  and  x)er- 
sistent  disregard  of  it  by  the  executive 
would  inevitably  lead  to  intolerable  confu- 
sion and  anarchy,  and,  if  patiently  sub- 
mitted to,  must  soon  end  in  despotism. 
What,  at  anj  time,  the  president  is  bound 
or  permitted  to  do,  in    execution   of    his 


65 

executive  powers,  depends  upon  the  exist- 
ing laws.  To  liini,  not  less  than  to  tlie 
private  citizen,  the  law  is  "a  rule  of  con-' 
duct  prescribed  by  the  sui)reme  powcir  of 
the  state,"  to  which  it  is  his  duty  to  con- 
form. He  is  not  to  take  it  upon  himself  to 
supersede  the  law,  or  to  sui)ply  its  delicien- 
cies  by  devices  of  his  own  invention,  even 
for  the  accomplishment  of  legitimate  ob- 
jects of  a  nature  requiring  the  agency  of 
the  executive ;  and  still  more  censurable 
would  it  be  for  him  to  enter  upon  the  i)ur- 
suit  of  objects  not  committed  to  his  charge 
by  the  Constitution  or  the  laws.  If,  in  his 
opinion,  existing  laws  require  amendment, 
or  new  laws  are  needed,  he  is  bound  to 
invoke  the  interposition  of  the  legislature, 
instead  of  usurping  its  powers. 

Ul)on  this  theory  congress  have  acted 
ever  since  the  organization  of  the  govern- 
ment.     Among    the    almost    innumerable 


C6 

statutes  that,  during  tbe  seventy-seven 
intervening  years,  have  been  enacted,  there 
are  many  which,  in  phraseology,  sometimes 
permissive,  and  sometimes  mandatory,  call 
for  executive  agency.  Sometimes  the  lan- 
guage is,  "  the  president  ?««?/,"  or,  "  it  shall 
he  Imvfiil  for  the  president ;"  and  sometimes 
it  is,  "  it  shall  he  the  duty  of  the  president," 
or  "  the  president  shall.''  These  statutes, 
it  will  be  noticed,  also,  severally  clothe  the 
president  with  new  powers,  and  impose 
upon  him  new  duties;  and  this,  of  itself, 
moreover,  serves  to  show  how  vain,  as  well 
as  useless,  it  would  have  been  to  attempt 
any  enumeration  of  the  acts  which,  as  the 
chief  executive  magistrate,  the  president 
has  authority,  or  is  required,  to  perform : 
and  this  may  reasonably  be  supposed  to  be 
another  reason  why  commentators  have 
abstained  from  any  attempt  at  the  exposi- 
tion of  this  undefined  mass  of  executive 


67 

power.  When  the  president  has  done  all 
that  the  laws  require  of  him,  he  has  done, 
not  only  all  that  he  ought  to  do,  but  all 
that  he  can  do,  as  the  depository  of  the 
executive  power,  without  transcending  the 
bounds  of  his  lawful  authority.  If  he  does 
this,  though  unintentionally,  his  orders 
afford  no  protection  even  to  the  subordinate 
agent  he  employs.  It  was  so  adjudged,  in 
an  early  case,  by  the  unanimous  decision 
of  the  Supreme  Court  of  the  United  States. 
I  refer  to  the  case  of  Little  v.  Barreme, 
reported  in  2  Cranch,  170.  As  it  may  bo 
briefly  stated,  and  in  a  manner  perfectly 
intelligible,  even  to  the  unprofessional 
reader,  I  do  not  hesitate  to  describe  it. 

The  case  arose  under  an  act  of  congress, 
approved  March  12,  1709,  entitled  "An 
act  further  to  suspend  the  commercial 
intercourse  between  the  United  States 
and  France,  and  the  dependencies  thereof." 


G8 

By  the  5tli  section  of  the  act  it  was 
enacted,  "That  it  shall  be  lawful  for  the 
President  of  the  United  States  to  give 
instructions  to  the  commanders  of  i)ublic 
armed  ships  of  the  United  States,  to  stop 
and  examine  any  ship  or  vessel  of  the 
United  States  on  the  high  seas,  which 
there  may  he  reason  to  suspect  to  be 
engaged  in  ixny  traffic  or  commerce  con- 
trary to  the  true  tenor  hereof;  and  if, 
upon  examination,  it  shall  appear  that 
such  ship  or  vessel  is  bound  or  sailing  to 
any  port  or  j)lace  within  the  territory  of 
the  French  rei)ublic,  or  her  dependencies, 
contrary  to  the  intent  of  this  act,  it  shall 
be  the  duty  of  the  commander  of  such 
public  armed  vessel  to  seize  every  such  shix^ 
or  vessel  engaged  in  such  illicit  commerce, 
and  send  the  same  to  the  nearest  port  in 
the  United  States."  Instructions  were 
accordingly    immediately    issued    by    the 


69 

secretary  of  the  navy,  imder  the  direc- 
tions of  the  president,  to  the  commanders 
of  the  public  armed  vessels  of  the  United 
States,  and,  amon^'  others,  to  the  defend- 
ant. Captain  Barreme.  A  i^art  of  these 
instructions  were  in  the  following  words: 
"You  are  not  only  to  do  all  that  in  you 
lies  to  prevent  all  intercourse,  whether 
direct  or  circuitous,  between  the  ports  of 
the  United  States  and  those  of  Franco 
and  her  dependencies,  in  cases  where  the 
vessels  or  cargoes  are  apparently,  as  well 
as  really,  American,  and  protected  by 
American  papers  only ;  but  you  are  to 
be  vigilant  that  vessels  or  cargoes  really 
American,  but  covered  by  Danish  or  other 
foreign  papers,  bound  to  or  from  French 
ports,  do  not  escape  you." 

It  will  be  observed,  therefore,  that  while 
the  act  of  congress  empowered  the  presi- 
dent to    give   instructions   to   naval   com- 


70 

maiiders  to  seize  ships  or  vessels  bound  or 
sailing  to  any  French  ports,  the  instructions 
actually  given  to  Captain  Barreme  directed 
the  seizure  also  of  vessels  bound  from 
French  ports.  Under  these  instructions  he 
captured  and  brought  into  port  a  vessel 
bound  or  sailing  from  a  French  port ;  and 
the  question  before  the  court  was  whether 
he  was  answerable  in  damages  to  the  per- 
sons who  had  been  subjected  to  losses  by  the 
capture  and  detention  of  the  vessel.  The 
Circuit  Court  of  the  United  States  for  the 
district  of  Massachusetts  decided  that  he 
tvas  so  answerable  ;  and  an  appeal  from  this 
decision  having  been  taken  to  the  Supreme 
Court  of  the  United  States,  the  judgment  of 
the  Circuit  Court  was  unanimously  aflQrmed. 
The  opinion  of  the  court  was  pronounced 
by  Chief-Justice  JMAESHAiiL,  who,  in  con- 
clusion, said : 


71 

"I  confess  tlie  first  bias  of  my  mind  was  very 
strong  in  favor  of  tlie  opinion,  that  tliougli  tlie 
instructions  of  the  executive  couM  not  give  a  riglit, 
they  might  yet  excuse  from  damages.  I  was 
much  inclined  to  think  that  a  distinction  ouglit 
to  be  taken  between  acts  of  civil  and  those  of 
military  officers ;  and  between  proceedings  within 
the  body  of  tlie  country  and  those  on  the  high 
seas.  That  implicit  obedience  which  military  men 
usually  pay  to  the  orders  of  their  superiors,  which, 
indeed,  is  indispensable  to  every  military  system, 
appeared  to  me  strongly  to  imply  that  the  princi- 
ple that  those  orders,  if  not  to  perform  a  prohibited 
act,  ought  to  justify  the  person  whose  general 
duty  it  is  to  obey  them,  and  who  is  })laced  by  the 
laws  of  his  country  in  a  situation  wliicli  in  gen- 
eral requires  tliat  he  should  obey  them.  I  was 
strongly  inclined  to  think  that  where,  in  conse- 
quence of  orders  from  the  legitimate  authority,  a 
vessel  is  seized  with  pure  intention,  the  claim  of 
the  injured  party  for  damages  would  be  a  proper 
subject  of  negotiation,  l>ut  I  liave  been  con- 
vinced that  I  was  mistaken,  aiul  I  have  receded 
from  this  first  opinion,  I  acquiesce  in  that  of  my 
brethren,  which  is,  that  the  instructions  cannot 
change  the  nature  of  the  transaction,  or  legalize 


an  act  whicli,  without  those  instructions,  would 
have  been  a  plain  trespass." 

This  decision  was  made  soon  after  tbe 
organization  of  the  government,  and  its 
sonndness  has  never  been  questioned.  On 
the  contrary,  the  principle  on  which  it  is 
founded  has  since  been  repeatedly  applied, 
in  this  country,  as  it  before  had  been  in 
England.  Its  significancy  is  too  obvious  to 
require  comment. 

The  result  of  this  summary  view  of  the 
executive  department,  it  will  be  seen,  is 
this :  that  whjrte,  in  the  distribution  of  the 
powers  deemed  requisite  to  good  govern- 
ment, it  was,  under  various  motives  of 
convenience  or  expediency,  and  in  imitation 
of  the  constitution  of  England,  decided  to 
allot  to  the  i^resident  certain  specified 
powers  which  he  would  not  otherwise  have 
possessed,  merely  as  the  depositary  of  the 
executive  power ;  and  to  enjoin  upon  him 


73 

some  duties  whieli  might  consistently  Lave 
been  otherwise  disposed  of;  and,  fou  greater 
safety,  some  others  which  properly  belong- 
ed to  the  executive  department,  —  the  true 
source  of  the  president's  civil  executive 
authority  is  his  designation  as  its  depos- 
itary. I  am  no  advocate  of  the  amplifica- 
tion of  executive  power.  On  the  contrary, 
I  fully  participate  in  the  general  alarm 
at  the  recent  assumptions  of  authority 
claimed  nnder  that  name.  But  I  can  see 
no  reason  to  apprehend  danger  from  the 
construction  I  have  ventured  to  give  to 
the  second  article  of  the  constitution.  It 
may,  at  first  view,  present  itself  in  a  difter- 
ent  light  to  others,  a  light  which  may 
even  impart  a  latitudinarian  hue  to  the 
executive  power ;  but  I  am  of  opinion, 
on  the  contrary,  that  if '  established  and 
enforced,    it    would    prove     a     safeguard 

against   the  unwarrantable  assumption  of 

7 


74 

authority  under  that  name,  by  furnish- 
ing a  definite  rule  by  which  to  determine 
its  true  scope.  No  one  can  be  insen- 
sible to  the  evident  importance  of  such 
a  rule,  nor  can  it  be  denied  that  we 
are  as  yet  without  one.  The  people  of 
Great  Britain,  as  I  have  already  shown, 
have  such  a  rule,  well  settled,  well  under- 
stood, and  easily  applied ;  and  it  is  pre- 
cisely that  I  propose.  The  king  is  invested 
with  certain  limited  and  well-defined  pre- 
rogatives, which  he  is  at  liberty  to  exercise 
according  to  his  own  will  and  pleasure, 
subject  only  to  the  constitution,  laws  and 
customs  of  his  kingdom.  Beyond  this,  his 
powers  and  duties  are  precisely,  those  I 
have  ascribed  to  the  i)resident  as  the 
depositary  of  the  executive  power  charged 
with  the  duty  of  taking  care  that  the  laws 
be  faithfully  executed.  But  in  this  country 
the  notions  universally  prevalent  concern- 


75 

iug  botk  the  sources  and  the  scope  of 
executive  power  are  either  too  vague  to 
admit  of  definition,  or  so  contradictory 
as  to  be  wholly  irreconcilable.  Theories, 
moreover,  have  lately,  without  scruple, 
been  made  to  conform  to  the  exigencies 
of  party  strife ;  and  the  president,  on 
account  of  his  line  of  conduct  with 
respect  to  the  States  lately  in  rebellion,  is 
denounced  as  an  usurper,  and  applauded 
as  a  wise  and  patriotic  statesman. 

Let  us  revert  for  a  moment  to  the  nar- 
rative I  have  given  of  his  pretensions  and 
his  acts,  and  bring  them  to  the  test  of  the 
principles  I  have  endeavored  to  establish. 
lie  undertook,  alone,  to  bring  back  the 
rebel  States  into  the  Union,  reinvested  with 
all  their  original  rights  and  privileges  as 
constituent  members  of  it,  leaving  nothing 
to  congress  except  what,  under  the  cir- 
cumstances, was,  as  he  understood  it,  but 


7G 

a  nominal  power,  to  be  exercised  by  the 
two  bouses  separately.  But  the  oflice  of 
the  president  is  to  execute  the  laws 
"  enacted  by  the  Senate  and  House  of 
Eepresentatives  of  the  United  States  of 
America  in  congress  assembled."  Had 
any  law  been  thus  enacted  directing  or 
empowering  Mr.  JohI!sSon  to  take  nj)on 
himself  a  task  so  difficult  and  moment- 
ous ?  So  far  from  it,  in  consequence  of 
his  most  reprehensible  omission  to  con- 
vene congress,  no  opportunity  had  been 
afforded  to  it  of  considering  the  sub- 
ject at  all.  In  the  prosecution  of  the 
work  he  had  thus  undertaken,  he  assumed 
authority,  by  proclamation,  to  appoint  and 
invest  with  large  powers  oflScers  unknown 
to  the  constitution  or  laws,  under  the  title 
of  Provisional  Governor ;  and  to  prescribe, 
and  peremptorily  dictate,  the  steps  to  be 
taken   by  the  people  of   the  States  with 


77 

wliicli  lie  lias  tlius  imwarrantably  uiicler- 
takeii  to  (leal.  To  say  nothiug  of  bis  want 
of  authority  to  act  at  all,  what  right  had 
he  to  act  thus  without  legislative  sanction  ? 
But  he  is  entitled  to  be  heard  iu  his  own 
vindication ;  and  we  are  not,  therefore,  to 
overlook  his  exposition  of  the  views  of  ex- 
ecutive authority  and  duty,  by  which  he 
professed  to  have  been  guided,  as  given  in 
the  preamble  to  his  in'oclamations.  The 
reader  is  not  likely,  I  think,  to  have  forgot- 
ten that  he  deduces  his  power  and  duty  to 
act,  not  from  the  2d  article  of  the  constitu- 
tion, relating,  as  we  have  seen,  to  the 
executive  department  of  the  government, 
but  from  the  4th  section  of  the  fourth  arti- 
cle, which  ordains  that  "  The  United 
States  shall  guarantee  to  every  State  in 
the  Union  a  republican  form  of  govern- 
ment !"     Did  he  suppose  himself  to  be  the 

United  States  ?     We  are  not  at  liberty  to 

7* 


78 

questiou  his  sincerity,  but  a  delusion  more 
thorough  and  complete  never  swayed  the 
mind  of  any  man  since  the  fall.  If  the 
people  of  a  State  should  see  fit  to  aban- 
don its  republican  form  of  government  and 
establish  in  the  i)lace  of  it  one  clearly 
unentitled  to  that  name,  congress  would 
be  bound  to  refuse  admission  to  its  sena- 
tors and  representatives;  and  if  it  should 
persist  in  adhering  to  its  new  form  of 
government,  it  would  doubtless  become 
the  duty  of  congress  to  endeavor  to  de- 
vise some  scheme  for  the  i)urpose  of  re- 
storing the  harmony  of  the  Union  :  and  so, 
if  the  people  of  a  State  should  abolish  its 
political  organization  and  thus  introduce 
the  reign  of  anarchy,  it  would  be  the 
duty  of  congress  to  interpose  and  abate 
the  nuisance.  But  what  would  the  execu- 
tive have  to  do  in  such  improbable  and 
"  extraordinary "    emergencies,    except    to 


79 

aid,  in  the  tlie   iiiaiiuer  prescribed  by  tlie 
legisUiture,  in  executing  its  declared  will  ? 

A  few  months  after  his  accession  to  the 
presidencj^  Mr.  Jonxsox  saw  fit  to  order 
a  quantity  of  cotton  which  had  belonged 
to  the  State  of  Korth  Carolina,  but  had 
been  captured  l)y  the  forces  of  the  Union, 
in  obedience  to  an  act  of  congress,  passed 
during  the  first  year  of  the  war,  to  be 
restored,  and  the  proceeds  of  other  captured 
cotton  of  the  same  State,  that  had  been 
captured  and  sold,  in  pursuance  of  the 
same  act,  to  be  i)aid  over  to  the  State. 
And  it  is  stated  that  he  has  not  scrupled 
to  direct  a  like  disposition  of  other  property 
to  a  very  large  amount,  under  like  circum- 
stances. Whence  he  supposed  himself  to 
have  derived  his  authority  to  do  all  this,  I 
am  not  informed.  It  seems  clear  that  his 
l)owcr  of  pardoning  offenses  against  the 
United  States  does  not  warrant  it.      Tos- 


80 

sibly  lie  may  liave  imagined  that  ho 
possessed  it  in  virtue  of  his  military  power, 
the  only  other  source  of  authority  men- 
tioned in  his  preambles ;  and  we  have  seen 
that  his  proclamation  for  the  regeneration 
of  l^orth  Carolina  contained  an  order  to 
the  troops  in  that  department  to  aid  the 
provisional  governor  in  executing  the 
duties  required  of   him. 

Bearing  in  memory  that  these  and  all 
the  other  acts  I  have  enumerated,  were 
done  in  time  of  peace,  let  us,  then,  in  the 
next  i)lace,  take  a  summary  survey  of 
the  powers  of  the  president  as  commander- 
in-chief  of  the  army  and  navy,  and  see 
whether  they  afford  any  warrant  for  those 
acts. 


This  branch  of  the  executive  authority 
is     treated    with    great    brevity    by    the 


81 

Federalist.  It  is  one  of  the  subjects 
of  comment  in  two  of  the  numbers 
TTi-itten  by  General  Hamilton,  one  of  tlie 
least  likely  of  all  men  to  misai)prelien(l 
it.  In  number  09,  where  lie  refers  to  it 
incidentally,  he  says,  "  It  amounts  to 
nothing  more  than  the  supreme  com- 
mand of  the  military  and  naval  forces, 
as  first  general  and  admiral  of  the  con- 
federacy ;  while  that  of  the  British  king 
extends  to  the  declaring  of  war,  and  to 
the  raising  and  regulating  of  fleets  and 
armies;  all  which,  by  the  Constitution 
under  consideration,  would  appertain  to 
the  legislature.'' 

In  luimber  74,  where  the  subject  is  more 
formally  introduced,  he  devotes  to  it  but 
a  single  paragraph,  which,  as  it  is  short, 
I  shall  need  no  apology  for  copying:  "  The 
President  of  the  United  States,"  he  ob- 
serves,   "is   to   be  commander-in-chief   of 


82 

the  army  and  navy  of  the  United  States, 
and  of  the  militia  of  the  several  States, 
when  called  into  actual  service  of  the 
United  States."  The  propriety  of  this  pro- 
vision is  so  evident,  and  it  is,  at  the  same 
time,  so  consonant  to  the  i)recedents  of 
the  state  constitutions  in  general,  that 
little  need  be  said  to  exx^lain  or  enforce 
it.  Even  those  of  them  which  have,  in 
other  respects,  coupled  the  chief  magistrate 
with  a  council,  have  for  the  most  part 
concentrated  the  military  authority  in  him 
alone.  Of  all  the  cares  and  concerns  of 
government,  the  direction  of  war  pecu- 
liarly demands  those  qualities  which  dis- 
tinguish the  exercise  of  power  by  a  single 
hand.  The  direction  of  war  implies  the 
direction  of  the  common  strength ;  and 
the  power  of  directing  and  employing  the 
common  strength  forms  a  usual  and 
essential    part    in    the    definition    of    the 


83 

executive  authority.  This  brevity  is  imi- 
tated by  Justice  Story  and  Chancellor 
Kent  in  their  Commentaries.  The  main 
object  of  all  these  writers  was  to  show 
the  propriety  of  having  the  chief  military 
command  committed  to  the  hands  of  a 
single  person ;  and  that  the  president, 
the  highest  civil  magistrate,  charged  with 
the  duty  of  maintaining  the  supremacy 
of  the  civil  power,  was  its  safest  and 
fittest  depository.  And  it  is  abundantly 
worthy  of  remark,  that  these  three  able 
writers,  distinguished  for  their  compre- 
hension and  perspicacity,  concur  in  treating 
the  authority  of  the  president  derived  from 
the  military  position  assigned  to  him,  as 
important,  or  even  eifective,  as  far,  at 
least,  as  the  HTmy  and  navy  are  con- 
cerned, only  i)i  war.  Nor  is  this  at  all 
surprising.  The  American  people  have,  at 
all    times,    been    irreconcilably    averse    to 


84 

the  miiiutcDancc  of  large  standiug  armies 
aud  navies  in  time  of  i)eace.  Except  a 
few  troops  to  garrison  our  widely  separ- 
ated forts,  aud  to  protect  the  frontier 
settlements  against  Indian  depredations, 
aud  the  Indians  against  fraud,  encroach- 
ment aud  violence  from  the  natives,  in 
pursuance  of  laws  authorizing  the  emi)loy- 
ment  of  troops  for  these  i^urposes;  aud 
a  few  shi^js  to  guard  our  coasts  and  en- 
force respect  for  our  flag  in  distant  seas, 
we  were  to  have,  and,  until  now,  have  had, 
no  army  or  navy  when  at  peace.  The  i)ower 
"  to  make  rules  for  the  government  aud 
regulation  of  the  land  and  naval  forces" 
was  expressly  confided  to  congress,  who 
alone  had  also  the  power  "  to  declare  war," 
"  to  raise  and  support  armies,"  aud  "  pro- 
vide aud  maintain  a  navy."  It  is  true  that 
there  are  emergencies  possible  in  time  of 
peace,  to  be  effectually  met  only  by  the  em- 


85 

ployinent  of  military  force.  But  they  were 
provided  for  by  the  power  giveu  to  congress 
"  to  provide  for  calling  forth  the  militia  to 
execute  the  laws  of  the  Union,  suppress 
insurrections  and  repel  invasions;"  a  power 
exercised  by  the  passage  of  an  act  for  this 
purpose  in  1792,  superseded  and  repealed 
by  another,  passed  in  1795,  still  in  force, 
and  fortified  by  recent  amendments.  It 
provides,  cautiously  and  wisely,  for  each  of 
the  contingencies  specified  in  the  constitu- 
tional grant.  The  call  is  to  be  made  by  the 
president.  When  its  purpose  is  to  suppress 
insurrection  against  the  government  of  a 
State,  he  can  act  only  on  the  application  of 
its  legislature,  or,  when  it  cannot  be  con- 
vened, of  its  executive.  When  the  object 
is  to  repel  invasion  or  to  suppress  resistance 
to  the  laws  of  the  United  States,  by  com- 
binations too  powerful  to  l)e  overcome  by 

the  civil  power,  the  president  is  to  be  gov- 

8 


8G 

erned  by  his  owu  discretion.  Of  the  militia 
so  called  forth,  the  i)resideut,  as  we  have 
said,  is  also  the  commander-in-chief.  They 
can  be  kept  in  the  public  service  only  until 
the  expiration  of  thirty  days  after  the  com- 
mencement of  the  next  ensuing  session  of 
congress.  It  was  in  virtue  of  the  first 
of  the  above  mentioned  acts,  that  General 
Washington,  in  1794,  called  forth  15,000 
militiamen  from  New  Jersey,  Pennsylvania, 
Maryland  and  Virginia,  for  the  suppression 
of  a  formidable  insurrection  in  the  western 
counties  of  Pennsylvania,  to  prevent  the 
execution  of  the  law  imposing  duties  on  do- 
mestic spirits.^  What  independent  powers, 
then,  in  time  of  peace,  remain  to  the  presi- 

*  The  immediate  command  of  these  troops  was  confided 
by  Washington  to  the  Governor  of  Virginia.  It  does  not 
appear  that  his  right  thus  to  delegate  his  authority  as 
commander-in-chief  of  the  militia  in  actual  service  was 
then  doubted ;  and,  though  this  power  was  questioned 
during  the  war  with  Great  Britain,  it  seems  undeniable, 
and  not  likely  to  be  disputed.    (2  Pitkin's  History,  421.) 


87 

dent  as  commander-iu-cliief?  I  leave  the 
reader  to  answer  the  question  for  himself, 
and  to  consider  whether  these  powers  ex- 
tend to  the  political  reorganization  and 
restoration  to  the  Union  of  truant  States, 
or  to  the  squandering  of  the  property  of 
the  nation.  It  is  true  he  may  find,  in  the 
annals  of  our  brief  national  existence,  a 
precedent  for  a  virtual  assumption  by  the 
president  of  the  power  to  declare  war,  by 
means  of  an  order  to  a  military  com- 
mander to  invade  the  territories  of  a 
neighboring  nation  with  whom  we  are  at 
peace;  and  another  i)reccdeut  for  orders 
to  a  commander  to  pause,  notwithstand- 
ing the  near  approach  of  winter,  upon  his 
march,  over  snowy  mountains  to  a  distant 
region,  and  to  employ  his  troops  in  ruth- 
lessly forcing  upon  the  people  of  a  territory, 
a  constitution  which  they  have  had  no 
voice  in  making,  and  which   they  abhor; 


88 

but  he  will  not  fail  to  discern  that  these 
were  shameful  examples  of  wanton  and 
wicked  usurpation ;  nor,  I  trust,  will  he 
lack  the  virtue  to  blush  at  their  atrocity. 
As  to  the  ample  powers  with  which  the 
president  is  armed  as  generalissimo,  in 
time  of  war,  they  are  to  be  sought  for  in 
authentic  treatises  upon  the  laws  of  war. 
They  are  altogether  exceptional  and  sui 
generis;  they  are  neither  increased  nor 
diminished  by  their  association  with  the 
civil  i^owers  of  the  executive.  Any 
attempt,  by  the  framers  of  the  Constitu- 
tion, to  define  them,  would  have  been 
preposterous;  and  no  such  attempt  was 
accordingly  made.  The  war-making  power 
was  confided  to  congress,  and  the  presi- 
dent was  declared  commander-in-chief;  and 
there  the  subject  was,  of  necessity,  left. 


89 

I  propose  now  briefly  to  consider  some 
of  those  powers  aud  duties  of  the  presi- 
dent which  are  specifically  allotted  to  him 
by  the    Constitution;    and,  Jirst,    of   the 

POWER  TO  GRANT  REPRIEVES  AXD  PAR- 
DONS. This  power  has  been  supposed  to 
comi)rehend  every  species  of  legal  penalty, 
from  the  forfeiture  of  life  to  the  smallest 
fine ;  aud  to  extend  as  well  to  fines  im- 
posed by  courts  for  contempt,  including 
those  inflicted  on  defaulting  jurors,  as  to 
those  imposed  by  penal  laws.^  It  has 
also  been  held  that  it  may  be  exercised 
before  as  well  as  after  conviction ;  aud 
even  before  indictment,  upon  an  appli- 
cation accompanied  by  a  confession  of 
guilt.  It  has  been  supposed,  moreover,  to 
warrant,  by  implication,  the  commutation 
of  punishment,   and   the  grant  of    condi- 

'  Opinions  of  Attorney-General,  pamm. 

8* 


90 

tional  i)ardons,  provided  the  condition  be 
such  that  its  observance  may  be  enforced, 
as,  for  example,  enlistment  in  the  navy.* 
No  argument  can  be  necessary  to  prove  the 
high  importance  of  such  a  power  as  this, 
nor  to  show  the  weighty  responsibility  its 
possession  imposes.  The  inherent  diflBculty 
of  executing  it  wisely,  and  its  peculiar 
liability  to  pernicious  misuse,  may  be  less 
evident,  and  certainly  have  failed  to 
awaken  the  degree  of  attention  and  jeal- 
ousy they  imperatively  demand.  It  would, 
in  reality,  be  diflScult  to  name  a  power,  to 
the  proper  exercise  of  which  a  sound  and 
enlightened  judgment,  honestly  and  pa- 
tiently applied,  is  more  indispensable. 
Consider  for  a  moment  its  nature.  Lord 
Coke,  in  treating  of  "this  high  prerogative," 
as  he  justly  calls  it,  of  the  king,  observes 

'  Opinions  of  Attorney- General,  passim. 


91 

that  "  lie  is  intrusted  witli  it  upon  especial 
confidence  that  Le  will  sjjare  those  only 
whose  case,  could  it  have  heeii  foreseen,  the 
law  itself  may  he  liresumed  ivilling  to  have 
excej)ted  out  of  its  general  rules,  wbicli  the 
wisdom  of  man  cannot  i^ossibly  make  so 
perfect  as  to  suit  every  case."  AVitb  this 
assistance  from  the  analytic  mind  of  Lord 
Coke,  I  leave  the  reader  to  analyze  the 
problem  presented  for  solution,  upon  an 
application  for  pardon ;  to  note  its  com- 
plexity, and  to  comj)ute  the  danger  of 
unavoidable  error.  AVhat,  then,  is  to  be 
expected  from  the  heedless  exercise  of 
"this  high  prerogative?"  Unhappily,  wo 
are  not  without  experience  upon  this  point. 
During  the  presidency  of  General  Tay- 
LOE,  a  man  convicted  of  coining,  system- 
atically prosecuted  during  many  months, 
upon  the  clearest  evidence,  obtained  by 
great  exertions  on  the  part  of  the  officers 


92 

of  justice;  who,  moreover,  was  shown, 
upon  his  trial,  to  liave  incurred  the  guilt 
of  subornation  of  perjury,  in  the  hope,  by 
that  means,  to  escape  punishment,  and 
who,  withal,  had,  for  greater  safety,  assumed 
the  character  of  a  religious  zealot,  was 
unconditionally  pardoned  without  inquiry, 
within  a  month  after  his  conviction !  I 
cite  this  instance  from  personal  knowledge. 
I  cite  another  from  a  very  cautiously,  as 
well  as  very  ably  conducted  newspaper. 
Eeferring  to  the  annunciation,  from  time 
to  time,  of  i)ardons  granted  by  President 
Johnson,  on  convictions  for  forgeries  of 
the  national  currency,  it  was  stated  in 
the  New  York  Tribune,  that  these  pardons 
already  numbered  more  than  ttoenty!  This 
was  several  months  ago.  Whether  the 
practice  was  thenceforth  continued,  or 
whether  the  severe  and  well-merited  cen- 
sures of  the  editor,  of  an  abuse  so  enormous 


93 

and  miscliievous,  served  to  arrest  or  check 
it,  I  am  not  informed.  These  were  among 
the  highest  and  most  dangerous  crimes 
known  to  our  laws,  crimes  which,  until 
lately,  in  England,  subjected  the  offender 
to  capital  punishment.  The  dullest  appre- 
hension can  require  no  prompting  to  per- 
ceive that  these  presidential  acts,  instead 
of  being  in  harmony  with  the  spirit  of  the 
laws,  were  in  flagrant  conflict,  not  less  with 
their  spirit  than  their  letter.  Of  the  recent 
prodigal  and  almost  boundless,  yet  appar- 
ently capricious  exercise  of  this  power  in 
the  grant  of  pardons  for  treason,  I  leave 
my  readers  to  form  their  own  opinions. 

That  the  power  to  pardon  offenses  ought 
to  find  a  place  in  our  government,  few, 
if  any,  probablj',  are  disposed  to  deny. 

At  the  adoiition  of  the  Constitution, 
neither  the  necessity  of  the  power,  nor, 
with  one  exception,  the  expediency  of  vest- 


94 

ing  it  in  the  president,  appears  to  have 
been  questioned.  But  it  was  strenuously 
insisted  that,  in  relation  to  the  crime 
of  treason,  "  the  assent  of  one  or  both 
branches  of  the  legislative  bodj^"  ought 
to  have  been  required.  General  Hamil- 
TOif,  in  the  74th  number  of  the  Federalist, 
undertook  the  task  of  answering  this  ob- 
jection. He  candidly  admits  that  there 
are  strong  reasons  for  the  exception.  "  As 
treason,"  he  observes,  "is  a  crime  leveled 
at  the  immediate  being  of  society,  where 
the  laws  have  once  ascertained  the  guilt 
of  the  offender,  there  seems  a  fitness  in 
referring  the  expediency  of  an  act  of 
mercy  toward  him  to  the  judgment  of  the 
legislature.  And  this  ought  the  rather  to 
be  the  case,  as  the  supposition  of  con- 
nivance of  the  chief  magistrate  ought  not 
to  be  entirely  excluded."  But  he  had 
undertaken  to  defend  the  Constitution  as 


95 

it  came  from  the  bands  of  its  framers,  and 
he  accordingly  proceeded,  with  his  wonted 
ability,  to  combat  the  objection.  "\Miether, 
had  he  lived  to  the  present  day,  with 
faculties  unimpaired,  the  conclusion  at 
which  he  arrived  would  have  withstood 
the  light  of  our  last  six  years'  experience, 
may  well  be  doubced. 


I  PROCEED,  in  the  next  place,  to  consider 
the  President's  power  or  appointment 
TO  OFFICE.  He  is,  as  we  have  seen,  to 
nominate,  and  by  and  with  the  advice  and 
consent  of  the  senate,  appoint  all  oflicers 
of  the  United  States  (with  a  reservation, 
however,  to  congress  of  power  to  provide 
otherwise  for  the  appointment  of  inferior 
oflScers);  and,  2,  when  vacancies  "happen" 
during    the    recess    of   the    senate,   he    is 


9G 

empowered  to  fill  them,  by  grunting  com- 
missions to  expire  at  the  end  of  the  next 
session.  It  will  he  remembered  that  in 
enumerating  the  powers  and  duties  of  the 
president,  I  classed  the  nomination,  and, 
with  the  approbation  of  the  senate,  the 
appointment  of  officers  among  his  duties, 
and  the  filling  of  vacancies  during  the 
recess  of  the  senate  among  his  iwwers, 
and  that  I  assigned  the  reason  for  so 
doing.  But  inasmuch  as  it  must  be  con- 
ceded that  the  duty  implies  the  authority 
to  execute  it,  and  the  power  implies  the 
duty  of  its  exercise  when  the  public  in- 
terest requires  it,  it  may  be  asked,  Is  not 
this  distinction  rather  nominal  than  real? 
It  would,  I  think,  be  a  sufficient  answer 
to  say  that  having  been  recognized,  and 
studiously  carried  out  by  the  founders  of 
the  government,  we  are  bound,  in  analyz- 
ing their  work,  to  regard  it  as  one  of  its 


97 

essential  elements  not  to  be  overlooked. 
But  if  I  do  not  greatly  err,  the  distinction 
is,  by  no  means,  devoid  of  practical  import- 
ance. On  the  contrary,  I  think  that  inat- 
tention to  it  has  contributed  in  no  slight 
degree  to  the  introduction  of  the  enormous 
abuses  which  have  grown  out  of  the  power 
of  appointment.  By  habitually  contem- 
plating this  faculty  as  a  power  granted  to 
the  president,  instead  of  a  stern  duty 
impcrativehj  required,  the  American  people, 
from  their  presidents  downward,  came  at 
length  to  regard  it  in  the  light  of  a  roj-al 
prerogative,  which  he  was  at  liberty  to 
exercise  for  his  own  gratification,  with  little 
or  no  resi)ect  to  the  public  welfare.  But 
contemplating  it  in  the  light  in  which  it 
was  so  carefully  placed  by  our  fathers,  we 
are  at  once  freed  from  a  delusion  so  base- 
less and  pernicious.     Looking  at  it  under 

its  true  aspect,  we  discern  its  true  nature. 
9 


98 

Its  obvious  purpose  serves  to  define  tlic 
limits  of  the  power  it  implies.  We  see  in 
it  only  au  obligation  imi)Osed  on  the  i)resi- 
dent  by  the  organic  law,  to  seek  out  and 
appoint  the  most  suitable  persons  to  fill  the 
offices  therein  designated,  and  to  be  created 
by  the  legislative  power ;  we  see  and  feel 
that  it  invests  its  possessor  with  no  right, 
in  exercising  it,  to  look  an  inch  beyond 
the  public  weal ;  and  we  instinctively 
revolt  at  the  thought  of  its  prostitution 
to  personal  objects.  Such,  beyond  ques- 
tion, were  the  views,  and  the  only  views, 
entertained  of  it  by  the  convention,  and  by 
our  ancestors  in  accepting  the  constitution 
at  their  hands.  If  some  vague  apprehen- 
sions of  usurpation  or  abuse  found  access  to 
the  minds  of  the  more  wary,  they  were  dis- 
missed as  unworthy  suspicions.  Among 
all  the  great  patriots  of  that  day  who  had 
been  thought  of  as  likely  to  be  called  to 


99 

fill  the  presidential  ofllce,  there  was  not 
one  of  Avhom  such  a  suspicion  could  bo 
harbored  for  a  moment;  and  the  present 
imparted  its  hue  to  the  future.  Nor 
should  we  be  in  haste  to  impute  want  of 
forecast  or  blind  confidence  to  our  pro- 
genitors. It  required  the  lapse  of  more 
than  forty  years  to  demonstrate  the  error 
into  which  they  fell.  Until  after  the  close 
of  the  administration  of  the  younger 
Adams,  no  president  had  lacked  the  vir- 
tue to  take  the  Constitution  for  his  guide, 
and  steadfastly  to  adhere  to  it ;  and  if 
honesty  can  properly  be  said  to  be  praise- 
worthy, the  conduct,  in  this  respect,  of 
the  first  six  presidents,  was  the  more  so 
on  account  of  the  superaddition  to  their 
constitutional  powers,  by  legislative  con- 
struction, of  an  almost  unlimited  power  of 
removal  from  office  —  a  subject  to  which  I 
propose    presently  to  advert.     Eecurring, 


100 

for  a  moment,  to  what  I  have  said  of  the 
consequences  resulting  from  want  of  atten- 
tion to  the  distinction  I  have  endeavored 
to  establish,  I  Avill  only  add,  that  the 
bewildering  influence  of  the  false  light 
emanating  from  this  error  is  clearly  trace- 
able in  the  discussions  to  which  this  last- 
mentioned  power  has  given  rise. 

But  let  us  now  take  an  observation, 
and  see  whither  we  have  drifted  during 
the  remaining  thirty-seven  years  of  our 
national  existence.  In  the  prosecution  of 
this  task  I  shall  have  little  further  occa- 
sion to  cite  the  language  of  the  constitu- 
tion. In  narrating  the  conduct  of  the 
successors  of  Mr.  Adams  with  respect  to 
those  parts  of  it  with  which  we  are  at 
present  concerned,  we  shall  find  them  to 
have  been  so  comi)letely  ignored  that,  in 
our  passage  along  the  rugged  i:>ath  we  are 
to    tread,    the    venerable    parchment    can 


101 

serve  no  other  purpose  except,  iu  the  end, 
to  mark  the  fearful  extent  of  our  depart- 
ure from  the  principles  it  inculcates  and 
enjoins;  and  that  it  might,  at  the  outset, 
as  well  have  been  sorrowfully  rolled  up 
and  reverently  laid  aside. 


As  we  have  seen,  the  constitution  pro- 
vides for  the  filling  of  vacancies  that 
may  happen  during*  the  recess  of  the 
senate.  It  is  silent  as  to  the  power  of 
removal  from  office.  One  of  the  objec- 
tions urged  against  it  while  i)ending  for 
ratification  by  the  people  of  the  several 
States,  was  the  participation  of  the  senate 
in  appointments.  The  objection  was  an- 
swered in  two  of  the  papers  of  the  Fed- 
9* 


102 

eralist.  They  were  written  by  General 
Hamilton,  who,  as  well  as  Mr.  Madison 
another  of  its  writers,  it  is  well  known,  was 
a  member  of  the  constitutional  conven- 
tion. In  the  seventy-seventh  number, 
assuming  the  necessity  of  the  existence  in 
the  government  of  a  power  of  removal 
for  notorious  incompetency  or  infidelity, 
the  writer  also  assumes,  without  argument 
or  ai)parent  doubt,  that  "the  consent  of" 
the  senate  "  would  be  necessary  to  dis- 
place as  well  as  to  appoint."  He  doubtless 
regarded  it,  as  many  others  have  done  in 
the  subsequent  discussions  to  which  the 
subject  has  since  given  rise,  as  incident  to 
the  power  of  appointment,  and,  conse- 
quently, as  belonging  conjointly  to  the 
president  and  senate.  And  as  one  of  the 
advantages  which  might  be  expected  to 
flow  from  the  cooperation  of  the  senate 
in  the  removal  as  well  as  in  the  appoint- 


103 

ment  of  officers,  he  meutions  the  greater 
stability  it  would  imjiart  to  the  administra- 
tion of  the  government.  And  he  observes, 
that  "  where  a  man,  in  any  station,  had 
given  satisfactory  evidence  of  his  fitness  for 
it,  a  new  president  would  be  restrained 
from  attempting  a  change  in  favor  of  a 
person  more  agreeable  to  him,  by  the  ap- 
prehension that  the  discountenance  of  the 
senate  might  frustrate  the  attempt,  and 
bring  some  degree  of  discredit  upon  him- 
self." Such,  it  may  be  safely  assumed, 
was  the  view  entertained  of  the  subject 
in  the  convention,  and  by  the  people; 
and  it  is  said  l)y  Judge  Story  to  have 
"  had  a  most  material  tendency  to  quiet 
the  just  alarms  of  the  overwhelming  in- 
fluence and  arbitrary  exercise  of  this 
prerogative  of  the  executive,  which  might 
prove  fatal  to  the  independence  and  free- 
dom of  opinion  of  pu1)lic  officers,  as  well 


104 

as  to  the  public  liberties  of  the  country.'" 
This  interpretation  does  not  ai)pear  to  have 
been  questioned  by  any  one,  except  the 
opponents  of  the  Constitution,  by  whom 
the  converse  was  asserted  as  a  reason  for 
rejecting  it.^  But  during  the  first  session 
of  congress,  in  1789,  a  bill  was  brought 
into  the  House  of  Eepresentatives  "to 
establish  an  Executive  Department,  to  be 
denominated  the  Department  of  Foreign 
Affairs "  (soon  afterward  changed  to  the 
Department  of  State),  which  contained  a 
provision  "That  whenever"  the  Secretary 
"  shall  be  removed  from  oflQce  by  the 
President  of  the  United  States,  or  in  any 
other  case  of  vacancy,"  &c.,  designating 
the  person  who,  during  such  vacancy, 
should  have  the  charge  and  custody  of  the 


»  3  Story's  Com.  on  the  Const.,  390. 
-  3  Story's  Com.  on  the  Const.,  393. 


105 

records,  &c.^  This  indirect  ascription  to 
the  president,  of  a  constitutional  power  of 
removal,  met  with  determined  opposition, 
and  led  to  an  elaborate  discussion.  It  was 
argued  by  its  advocates,  that  this  power 
"  belonged  to  the  president ;  that  it 
resulted  from  the  nature  of  the  power,  and 
the  convenience  and  even  necessity  of  its 
exercise.  It  was  clearly,  in  its  nature,  a 
part  of  the  executive  power,  and  was  indis- 
pensable for  a  due  execution  of  the  laws, 
and  a  regular  administration  of  i^ublic 
affairs.'"    And  they  expatiated  on  the  evils 


'  3  Marshall's  Life  of  Washington,  Phila.  cil.,  IGO ;  1 
Statutes  at  Large,  28.  This  act  was  approved  July  27; 
and  a  few  days  after,  an  act  to  establish  the  Treasury 
Department  was  approved,  containing  a  like  provision. 
Chancellor  Kent  refers  to  the  latter,  as  that  by  which  tho 
legislative  construction  was  given.  (1  Kent's  Com.,  310.) 
Judge  Stouy's  account  is  indistinct,  and  in  regard  to 
particulars,  unintelligible.  (3  Story's  Com.  on  tho  Const., 
393,  394.) 

'  Story's  Com.  on  tlic  Const.,  393. 


lOG 

likely  to  arise  from  the  denial  of  it  to  the 
j)resideiit. 

Ecpelling  the  insinuation  that  they  were 
deluded  by  the  splendor  of  the  virtues 
which  adorned  the  character  of  President 
Washington,  they  asserted  that  their  opin- 
ion "was  founded  on  the  structure  of  the 
office.  The  man  in  whose  favor  a  majority 
of  the  people  would  unite,  to  elect  him  to 
such  an  oflSce,  had  every  probability,  at 
least,  in  favor  of  his  principles.  He  must 
be  presumed  to  possess  integrity,  inde- 
pendence, and  high  talents.  It  would  be 
X  impossible  that  he  should  abuse  the  pat- 
ronage of  the  government,  or  his  power  of 
removal,  to  the  base  purpose  of  gratifying 
a  party,  or  of  ministering  to  his  own  resent- 
ments, or  of  displacing  upright  and  excel- 
lent officers  for  a  mere  difference  of  opin- 
ion. The  i)ublic  odium  which  would  attach 
to  such  conduct  would  be  a  perfect  secur- 


107  • 

ity  agaiust  it.  And,  in  truth,  removals 
made  from  such  motives,  or  with  a  view  to 
bestow  the  offices  upon  dependents  or  fa- 
vorites, would  be  an  impeachable  offense."  ^ 
And  these  were  patriotic  and  sagacious 
men !  If  any  new  evidence  were  wanting* 
of  the  impotency  of  our  struggle  to  raise 
or  rend  the  veil  that  shrouds  the  future 
from  our  view,  or  that,  of  all  sciences,  that 
of  government  is  the  most  abstruse,  may 
we  not,  by  the  light  of  experience,  find  it 
here  ?  Of  this  house  JVIr.  Madison  was  a 
member  ;  and  under  bis  strong  sense  of  the 
inconveniences  which  would  almost  cer- 
tainly ensue  from  the  want  of  any  power 
in  the  government  during  the  recess  of  the 
senate,  to  get  rid  of  an  unfaithful  or  a  cor- 
rupt officer,  he  gave  his  deservedly  weighty 
countenance  to   the   proposed   enactment; 

'  3  Story's  Com.  on  the  Const.,  393. 


108 

and,  after  expressing  his  concurrence  in  the 
opinion  that  no  serious  danger  was  to  be 
api)rehended  of  the  abuse  of  the  power  by 
the  president,  he  added :  "  In  the  first  place 
he  will  be  impeachable  by  this  house  before 
the  senate,  for  such  an  act  of  mal-adniin- 
istration ;  for  I  contend  that  the  wanton 
removal  of  meritorious  officers  would  sub- 
ject him  to  impeachment,  and  removal  from 
his  high  trust."  The  clause  affirming  the 
power  of  removal  in  the  i^resident  was 
retained  by  a  vote  qf  thirty-four  members 
against  twenty.  In  the  senate  it  passed 
by  the  casting  vote  of  the  vice-president.^ 
This  enactment,  says  Chancellor  Kent, 
"amounted  to  a  legislative  construction  of 
the  Constitution,  and  it  has  ever  since  been 
acquiesced  in  and  acted  uiDon  as  of  deci- 


'  3  Story's  Com.  on  tlie  Const.,  394  (citing  1  Lloyd's  De- 
bates, 503) ;  2  Marshall's  Life  of  Washington,  Phila.  ed., 
160-163. 


109 

sive  authority  in  the  case.  It  applies 
equally  to  every  other  officer  of  govern- 
ment appointed  by  the  president  and 
senate  whose  term  of  duration  is  not 
specially  declared."  The  Chancellor  pro- 
ceeds to  justify  it  on  the  ground  that  this 
power  ought  to  be  regarded  as  a  i)art  of 
the  executive  authority  wlioUy  vested  in  the 
2)resident,  and  in  which,  therefore,  the 
senate  has  no  right  to  participate.  "The 
president,"  he  observes,  "is  the  great 
responsible  oflQcer  for  the  faithful  execution 
of  the  law,  and  the  i)ower  of  removal  was 
incidental  to  that  duty,  and  might  often  be 
required  to  fulfill  it."  "  This  question,"  he  ' 
adds,  "  has  never  been  made  the  subject  of 
judicial  discussion ;  and  the  construction 
given  to  the  Constitution  in  1789  has  con- 
tinued to  rest  on  this  incidental  declaratory 
opinion   of   congress,   and    the   sense  and 

practice  of   government   since  that    time. 
10 


110 

It  may  now  be  considered  as  firmly  and 
definitely  settled,  and  there  is  good  sense 
and  practical  utility  in  the  construction. 
It  is,  however,  a  striking  fact  in  the  con- 
stitutional history  of  our  government,  that 
a  power  so  transcendent  as  that  is,  which 
places  at  the  disposal  of  the  president 
alone  the  tenure  of  every  executive  officer 
appointed    by  the    president    and  senate, 

^ \   should  depend  upon  inference  merelj',  and 

should  have  been  gratuitously  declared 
by  the  first  congress  in  opposition  to 
the  high  authority  of  the  Federalist;  and 
should  have  been  supported  or  acquiesced 
in  by  some  of  those  distinguished  men 
who  questioned  or  denied  the  power  of 
congress  even  to  incorporate  a  national 
bank."^  There  is  great  force  in  the  argu- 
ment of  this   distinguished  jurist,  in  sup- 

^  1  Kent's  Com.,  310. 


Ill 

port  of  the  power  in  question,  as,  in  its 
uature,  aj^pertaiuiug  to  tlie  executive  de- 
l)artiuent,  as  well  as  truth  iu  liis  reflectious 
upon  it.  They  were  written  in  1825,  dur- 
ing the  presidency  of  Mr.  Adams.  The 
Constitution  had  then  been  in  operation 
thirty-seven  years,  during  which  the  power 
had  been  exercised  only  for  beneficial  pur- 
l)oses,  unless,  as  was  alleged  in  a  few  in- 
stances, by  Mr.  Jeffeksox.  It  is  not  at 
all  surprising,  therefore,  that  he  should 
have  admitted  its  existence  and  main- 
tained its  utility.  Had  his  immortal  Com- 
mentaries been  deferred  until  after  the 
lapse  of  onl}'  four  years,  with  what  reluct- 
ance he  would  have  yielded  to  the  force 
of  his  own  argument,  may  be  partially 
inferred  from  a  brief  note  in  a  subse- 
quent edition.  He  concurs,  it  will  be  ob- 
served, in  the  opinion  of  the  first  con- 
gress, that   the  consignment  by   the   con- 


112 

stitutiou  of  tlie  executive  power  to  the 
president,  is,  of  itself,  a  source  of  power, 
and  that  the  power  of  removal  is  deriv- 
able from  this  source,  to  which  I  shall 
have  occasion  in  the  sequel  more  par- 
ticularly to  refer.  Mr.  Webstee,  in  his 
speech  in  the  senate,  expressed  his  dissent 
from  the  decision  of  the  congress  of  1789 ; 
and  his  conclusion  was  but  a  corollary  from 
his  denial  to  the  president  of  all  other 
than  the  specified  powers ;  for  while  he  was 
constrained  to  admit  the  necessity  of  a 
power  of  removal  from  office,  his  theory 
left  him  no  other  source  from  which  it 
could  be  inferentially  deduced,  except  the 
power  of  appointment;  and  as  this  was 
vested  in  the  president  and  senate,  the  power 
of  removal  could  not  reside  in  the  president 
alone,  but  must  belong  to  him  and  to  the 
senate  conjointly.  But,  entangled  as 
the    question   is,   with    the  still    unsettled 


113 

broader  one,  whether  or  not  the  president 
derives  authority  from  his  designation  as 
the  depositary  of  the  executive  power,  it 
must  be  admitted  to  be  involved  in  no 
inconsiderable  degree  of  perplexity.  Con- 
sidering the  vast  importance  of  the  power 
of  removal,  it  is  scarcely  conceivable  that 
it  was  altogether  overlooked  by  the  con- 
vention, when  engaged  in  regulating  the 
exercise  of  the  cognate  power  of  appoint- 
ment; and,  supposing  it  to  have  been 
thought  of,  however  strange  it  may  seem 
that  it  was  passed  over  in  silence,  we  are 
under  the  necessity  of  endeavoring  to 
account  for  the  omission,  as  the  only 
means  of  determining  to  whose  hands 
it  was  intended  to  be  confided.  If  we 
concur  with  Mr.  Webster  in  his  inter- 
pretation of  the  declaration  of  the  con- 
stitution, that  the  executive  power  should 

be  vested  in  the  president,  the  conclusion, 
10* 


114 

as  I  have  already  observed,  seems  almost 
inevitable,  that  this  delicate  and  dangerous 
power  was  considered  to  belong  to  the 
president  and  senate  conjointly,  as  an 
incident  of  the  power  of  appointment.  If, 
on  the  other  hand,  we  reject  this  interpre- 
tation, we  may  then  consistently  award 
the  power  to  the  president,  as  one  of  the 
constituent  elements  of  the  executive 
power.  But  this  construction  would  still 
be  open  to  denial,  on  the  ground,  so 
strenuously  insisted  on  by  Mr.  Webster, 
that  the  power  of  removal  naturally  be- 
longs to  the  power  of  appointment,  and 
ought,  therefore,  by  implication,  in  the 
absence  of  any  constitutional  declaration 
to  the  contrary,  to  be  held  to  accompany 
it.  Mr.  Webster  gave  utterance  to  these 
opinions  in  1835,  and  he  frankly  acknowl- 
edged that,  confident  as  he  then  felt  of  their 
soundness,  he  could  not  venture  to  assure 


115 

the  senate  that  they  might  not  possibly 
have  been  biased  by  the  nnwarrantable 
and  unforeseen  uses  to  which  the  power 
of  removal  had  recently  been  perverted. 
What  his  opinion  would  have  been,  had  it, 
like  that  of- the  great  commentator,  been 
formed  during  the  golden  age  of  the  Eo- 
public,  he  has  permitted  us  to  conjecture. 
We  had  then  reached  the  sixth  year 
of  a  new,  and,  on  many  accounts, 
memorable  era  in  our  national  history, 
commenciug  with  the  elevation  to  the 
presidency  of  an  unlettered,  passionate  and 
vindictive  soldier,  little,  if  at  all,  accus- 
tomed to  self-control.  For  my  present  \^^ 
purpose  it  is  sufficient  to  saj'  that  it 
was  then,  for  the  first  time,  unblushingly 
proclaimed  that  oflSces  were  to  be  regarded 
as  "  spoils,"  which  •'  hclouycd  to  the  victor  " 
in  the  conflicts  of  party.  Ilad  it  been 
designed  to  limit  this  dogma  in  practice  to 


IIG 

the  filling  of  vacancies  accidentally  occur- 
ring, and  offices  newly  created  by  law,  its 
annunciation  would,  notwithstanding,  have 
been  in  direct  conflict  with  the  obvious  and 
indisputable  theory  of  our  government  — 
\^  that  offices  are  trusts  created,,  not  for  the 
benefit  of  those  who  are  to  hold  them, 
or  of  their  party,  but  for  the  public 
good;  and  are  accordingly  to  be  conferred 
only  on  those  who,  upon  impartial  inquiry, 
appear  to  be  best  fitted,  by  their  intelli- 
gence and  honesty,  for  the  proper  dis- 
charge of  the  duties  they  impose.  But 
the  practice,  thus  restricted,  would  have 
been  too  limited  to  be  productive  of  serious 
detriment  to  the  public  welfare,  and  espe- 
cially as  it  was  not  wholly  novel,  would 
probably  have  been  submitted  to  without 
general  complaint.  But  it  was  but  too 
evident  that  no  such  limits  were  to 
be  observed.     Offices  were    no    longer  to 


117 

be  regarded  as  agencies  created  and  to  be 
exercised  for  the  benefit  of  the  public,  but 
were  to  be  literally  treated  as  "  spoils,"  to 
which  the  title  of  the  victor  was  to  be  ruth- 
lessly enforced,  not  by  the  legitimate  exer- 
cise of  executive  powers,  in  the  manner  and 
for  the  purposes  contemplated  by  the  found- 
ers of  the  government,  but  by  the  wanton 
and  absolute  perversion  of  these  powers  to 
this  new,  base  and  unlawful  end.  Tlio 
impatient  victors  were  not  to  be  constrained 
to  wait  for  vacancies  to  "happen,"  and  then 
filled  by  nomination  when  the  senate  was  in 
session,  or  by  appointment  when  it  was  not. 
The  tremendous  power  of  removal  was  no 
longer  to  be  held  in  reserve  as  a  safeguard 
against  official  dishonesty  or  incapacity, 
but  was  to  be  audaciously  prostituted 
to  the  purpose  of  creating  vacancies  to  bo 
filled  by  the  partisans  of  the  president. 
The  process   was   very   simple.     No  sepa- 


118 

rate  act  of  removal  was  required;  it  was' 
only  necessary  to  a2)point;  the  removal 
was  accomplished  by  operation  of  law.^ 

No  time  was  lost  in  carrying  out  these 
false  i)rinciples  to  their  utmost  extent. 
Spies  and  informers  lent  their  assistance 
to  the  work.  The  old  questions — "Is  he 
honest?  Is  he  capable?"  were  no  longer 
the  tests  of  the  propriety  of  removal,  and 
were  scouted  as  inapplicable  to  the  new 
system.  The  inquiry  now  was,  Is  he  a 
zealous,  devoted  and  efficient  partisan  of 
the  president?  Many  hundreds  of  faithful 
and  meritorious  officers  were  accordingly 
displaced  during  the  first  year  of  General 


'  It  was  said  by  Mr.  Webster,  in  liis  speech  in  the  senate 
already  mentioned,  on  the  subject  of  the  power  of  removal, 
that  an  office  is  held  to  be  vacated  by  the  mere  nomination 
of  another  person  to  fill  it,  althovigh  not  acted  on  or  rejected 
by  the  senate,  and  I  am  not  aware  that  the  assertion  was 
controverted.  It  seems  strange  that  this  should  have  been 
considered  other  than  an  inchoate  step,  in  itself  ineflfectual 
iintil  concurred  in  by  the  senate. 


119 

Jackson's  administration,  to  make  room 
for  successors  distiuguislied  for  their  blind 
devotion  and  unscrupulous  subserviency  to 
his  party.  This  i)olicy  was  actively  perse- 
vered in  until  the  spoils  were  all  distrib- 
uted ;  and  its  spirit  was  rigidly  adhered 
to  in  the  choice  of  persons  to  fill  casual 
vacancies  throughout  his  presidency.  For- 
tunate for  the  country  would  it  have  been 
had  it  then  been  discarded  forever.  But, 
unhappily,  it  was  one  of  those  evils 
which,  left  to  themselves,  are  sure  to  be 
perpetuated,  and  to  increase  in  vitality  as 
they  become  more  and  more  inveterate. 
Such,  accordingly^  has  been  the  result  in 
this  instance.  Had  General  Jackson,  at 
the  outset,  been  impeached  and  deposed, 
as  he  undeniably  deserved  to  be,  for 
this  monstrous  abuse  of  his  authoritjs  his 
election  would  have  proved  a  boon  of 
incalculable  value    to  his    country.    That 


120 

"^  it  has,  in  fact,  proved  an  ineffable  curse,  is, 
unhappily,  no  less  true.     It  was  the  first 

^,  great  downward  step  in  our  national  career. 
By  the  tenfold  increase  to  which  it  has  led, 
of  all  the  pernicious  elements  of  our  party 
conflicts  ;  by  the  ascendency  it  has  given  to 
motives  of  personal  interest,  over  the  dic- 
tates of  public  duty,  in  all  political  discus- 
sions and  in  the  selection  of  candidates  for 
office ;  by  the  nefarious  means  mainly 
traceable  to  it,  resorted  to  for  the  attain- 
ment of  success  in  elections,  which  have 
thus,  at  length,  come  to  be  regarded  as 
mere  scrambles  for  office ;  by  the  terrible 
inroads  it  has  made  upon  the  manly  inde- 
pendence and  patriotic  aspirations  charac- 
teristic of  our  Saxon  blood ;  it  has,  for 
thirty-six  years,  been  warriug  upon  that 
public  virtue  which  constitutes  the  dis- 
tinctive and  most  essential  principle  of 
republican  governments;  and,  unless  it  be 


121 

speedily  arrested,  must  end  in  the  over-  <- 
throw  of  our  own.  In  corroboration  of 
what  I  liave  said  I  beg*  leave  to  refer  the 
reader  to  a  very  able  and  impressive  report 
on  "Executive  Patronage,"  made  on  tlie 
9th  of  February,  1835,  by  a  committee  of  ^ 
the  senate ;  and  I  shall  need  no  apology  for 
availing  myself  sparingly  of  its  contents. 
After  pointing  out  and  dwelling  upon  the 
large  and  increasing  revenue  and  expendi- 
tures of  the  government,  and  showing 
that  the  number  of  public  oflScers  hold- 
ing their  i)laces  directly  or  indirectly 
from  the  president,  and  liable  to  be  dis-  \ 
missed  at  his  i^leasure,  exceeded  G0,000, 
the  committee  proceed  to  speak  of  "  the 
practice  so  greatly  extended,  if  not  for 
the  first  time  introduced,  of  removing  from 
office  persons  well  qualified,  and  who  have 
faithfully  performed  their  duty,  in  order  to 

fill  their  i)laces  with  those  who  are  recom- 
11 


122 

meudcd  on  the  ground  that  they  belong  to 
the  party  in  power;"  and  they  conchide 
their  observations  upon  this  subject  as  fol- 
lows :  "  It  is  easy  to  see  that  the  certain, 
direct  and  inevitable  tendency  [of  this 
practice]  is  to  convert  the  entire  body  of 
those  in  oflSce  into  corrupt  and  supple  instru- 
ments of  power,  and  to  raise  uj)  a  host  of 
hungry,  greedy  and  subservient  partisans, 
ready  for  every  service,  however  base  and 
corrupt.  Were  a  premium  offered  for  the 
best  means  of  extending  to  the  utmost 
the  power  of  patronage ;  to  destroy  the  love 
of  country,  and  substitute  a  spirit  of  sub- 
serviency and  man-worship;  to  encourage 
vice  and  discourage  virtue  ;  and,  in  a  word, 
to  prepare  for  the  subversion  of  liberty  and 
the  establishment  of  despotism,  no  scheme 
more  perfect  could  be  devised."  The  report 
concludes  in  these  words :  "  The  disease  is 
daily  becoming  more  aggravated  and  dan- 


123 

gerons,  and  if  it  be  permitted  to  progress 
for  a  few  years  loDger,  with  the  rapidity 
with  which  it  has  of  late  advanced,  it  will 
soon  i)ass  beyond  the  reach  of  remedy. 
This  is  no  party  question.  Everj"  lover  of 
his  country  and  its  institutions,  be  his  party 
what  it  may,  must  see  and  deplore  the  rapid 
growth  of  patronage,  with  all  its  attending 
evils,  and  the  certain  catastrophe  which 
awaits  its  further  progress,  if  not  timely 
arrested.  The  question  now  is,  not  how,  or 
where,  or  with  whom  the  danger  originated, 
but  how  it  is  to  be  arrested  ;  not  the  cause, 
but  the  remedy ;  not  how  our  institutions 
and  liberty  have  been  endangered,  but  how 
they  are  to  be  restored." 

This  report  gave  rise  to  an  animated 
debate  in  the  senate,  and  an  elaborate 
speech  from  Mr.  Webster,  in  which,  refer- 
ring to  this  abuse,  he  said :  "  Sir,  we  can- 
not disregard  our  experience.    AVe  cannot 


124 

sbut  our  eyes  upon  what  is  around  and 
upon  us.  No  candid  man  can  deny  that  a 
great,  a  very  great  change  has  taken  i)lace 
within  a  few  years,  in  the  practice  of  the 
executive  government,  which  has  produced 
a  correspondent  change  in  our  political 
condition.  No  one  can  deny  that  oflBce  of 
every  kind  is  now  sought  with  extraor- 
dinary avidity,  and  that  the  condition,  well 
understood  to  be  attached  to  every  office, 
high  or  low,  is  indiscriminate  support  of 
executive  measures,  and  imi)licit  obedience 
to  executive  will." 

May  it  not  —  borrowing  the  language  of 
the  report  of  the  committee  —  with  truth 
be  said,  that  if  a  premium  were  offered  for 
the  best  description  of  the  present  con- 
dition of  things,  no  more  perfect  one  could 
be  devised  than  that  given  in  this  brief 
extract  of  the  political  asi^ect  of  the  coun- 
try, as  it  ijresented  itself  to  the  clear  and 


125 

penetrating  vision  of  this  distinguished 
statesman,  in  the  sixth  year  of  President 
Jackson's  administration?  It  requires, 
however,  one  additional  feature  to  render 
it  complete.  General  Jacksox  removed 
only  those  who  opposed  his  election,  and 
appointed  only  those  who  belonged  to  his 
party.  The  last  of  his  successors  has  re- 
versed this  rule:  he  proscribes  the  party 
which  elevated  him  to  power,  and  bestows 
his  patronage  on  those  who  labored,  to  the 
utmost  extent  of  their  ability,  for  his  defeat ! 
But  while,  on  the  one  hand,  it  must  be  con- 
ceded that,  upon  a  superficial  view,  this 
additional  feature  appears  to  add  ugliness 
to  the  portrait,  on  the  other  hand,  it  must 
be  acknowledged  that  it  not  only  detracts 
from  its  force  in  impelling  us  onward  to 
destruction,  but  affords  a  i)romise  of  future 
good ;  for  Avhile  it  tends  to  temper  the 
reckless  eagerness  of  office-seeking  x)oliti- 


12G 

cians,  by  teacliing  them  that  they  are  liable 
to  be  disappoiuted  in  their  expectations  of 
reward  by  the  tergiversation  of  their  can- 
didate, it  adds  another  incentive  to  greater 
caution  in  the  nomination  of  men  to  fill 
the  two  highest  offices  in  the  republic. 
But  the  subject  is  too  grave  for  irony. 

What  line  of  conduct,  then,  with  these 
momentous  and  alarming  truths  staring 
us  in  the  face,  does  it  behoove  us  to 
adopt?  Shall  we  ignobly  yield  ourselves 
up  to  the  current,  and  flounder  on  to  the 
dark  and  oblivious  gulf  into  which,  if  we 
do,  it  must  inevitably  and  irretrievably 
plunge  us?  Or  shall  we,  by  one  bold 
and  decisive  effort,  while  it  is  yet  in  our 
power,  extricate  ourselves  from  this  per- 
ilous dilemma,  and  escape  a  doom  so 
iippalling?  Surely  there  ought  to  be  no 
doubt  or  hesitation  upon  a  point  so  vital. 
But  how  is  the  work  to  be  accomplished? 


127 

One  tbiug,  at  least,  is  clear.  Xo  effort, 
however  determined,  to  turn  and  patiently 
stem  the  current,  will  suffice.  We  must 
get  out  of  it ;  plant  our  feet  once  more 
firmly  upon  terra  firma,  and  exterminate 
the  stream  by  exterminating  the  fountain 
whence  its  foul  waters  are  supplied.  Here, 
dismissing  the  metaphor,  I  return  to  the 
stern  realities  of  the  case  before  us.  I 
have  already  intimated  that  the  impeach- 
ment and  deposition  of  President  Jackson 
would  not  only  liave  proved  an  antidote  to 
the  pernicious  influence  of  his  example, 
but  an  effectual  warning  to  his  successors. 
Why  this  measure  of  justice  and  expedi- 
ency was  not  resorted  to,  it  may  well  be 
supposed,  can  hardly  fail  to  become  a  sub- 
ject of  historic  inquiry  to  posterity  ;  but  it 
is  unnecessary  now  to  detain  the  reader 
by  any  explanation.  lie  will  at  once  con- 
cur in  the  statement  that  such  a  step  was 


128 

rendered  impossible  by  tlie  extraordinary 
circumstances  amid  which  the  high  offender 
happened  to  stand.  Xo  such  step  was 
accordingly  attempted;  and  the  power  of 
impeachment,  on  which  so  much  reliance 
was  placed  by  the  founders  of  the  govern- 
ment, still  remains  an  untried  remedy  for 
executive  usurpation  and  misrule.  But  the 
report  of  the  committee  of  the  senate,  to 
which  I  have  referred,  was  accompanied 
by  a  bill,  the  third  section  of  which  was 
in  these  words:  "That  in  all  nominations 
made  by  the  i)resident  to  the  senate  to 
fill  vacancies  occasioned  by  removal  from 
office,  the  fact  of  the  removal  shall  be 
stated  to  the  senate  at  the  same  time  that 
the  nomination  is  made,  with  a  statement 
of  the  reasons  for  such  removal." 

In  the  speech  of  Mr.  Webster,  to  which 
I  have  referred,  he  gave  his  cordial  sup- 
port to  the  measures  recommended  by  the 


129 

committee,  iueluding  the  section  I  Lave 
copied ;  and  he  took  occasion  to  express, 
at  length,  his  oi)inions,  which  he  said  were 
the  result  of  long  and  careful  reflection, 
concerning  the  i)owers  of  appointment  and 
removal.  He  dissented  from  the  construc- 
tion given  to  the  Constitution  bj'  the  first 
congress,  the  power  of  removal  being,  in 
his  opinion,  naturally  and  necessarily- 
included  in  that  of  appointment ;  and  the 
latter  being  conferred  on  the  president  and 
senate,  he  thought  the  power  of  removal 
went  along  with  it,  and  should  have  been 
regarded  as  a  part  of  it,  and  exercised  by 
the  same  hands.  And  while  he  admitted 
that  the  decision  of  1789,  acquiesced  in  and 
recognized  by  subsequent  laws,  ought  not 
to  be  indirectly  questioned,  he  thought  that 
congress  might,  if  necessity  should  require 
it,  reverse  that  decision.  But  however  this 
might  be,  he  was  clearly  and  decidedly  of 


130 

opinion  that  congress  possessed  ample 
power  to  regulate  the  tenure  of  office.  It 
was  a  common  exercise  of  legislative 
power,  and  it  was  not,  in  this  i)articular, 
at  all  restrained  or  limited  by  anything  in 
4  the  Constitution,  except  with  regard  to 
judicial  officers ;  "  all  the  rest  is  left  to  the 
discretion  of  the  legislature.  Congress  may 
give  to  offices,  which  it  creates,  not  judi- 
cial, what  duration  it  pleases.  When  the 
office  is  created,  and  is  to  be  filled,  the 
president  is  to  nominate  a  person  to  fill 
it ;  but,  when  he  comes  into  office,  he  comes 
into  it  upon  the  conditions  and  restrictions 
■which  the  legislature  may  have  attached  to 
it."  Congress  might,  for  example,  he  said, 
declare  that  other  offices,  besides  judicial 
offices,  should  be  held  during  good  beha- 
vior; and  if  the  Constitution  had  been 
silent  with  respect  to  the  tenure  of  the 
judicial  office,  congress  might  have  made  it 


131 

wliat  it  is.  And  is  a  reasonable  check  upon 
the  power  of  removal  anything  more  than 
a  regulation  of  the  tenure  of  office  ? 

As  to  the  regulation  prescribed  in  the 
section  above  quoted,  it  was  "  of  the  gent- 
lest kind."  It  only  required  the  president 
to  make  known  to  the  senate  his  reasons 
for  the  removals.  It  might,  he  thought, 
very  reasonably  have  gone  farther.  It 
might,  and  perhaps  it  ought,  to  have  pre- 
scribed the  form  of  removal ;  and  it  might 
also,  he  was  of  opinion,  have  declared  that 
the  president  should  only  suspend  ofiicers, 
at  pleasure,  only  until  the  next  meeting  of 
congress.  But  he  was  content  with  the 
slightest  degree  of  restraint  sutlicient  "  to 
arrest  the  totally  unnecessary,  unreason- 
able, and  dangerous  exercise  of  the  power 
of  removal."  The  degree  of  regulation 
proposed  by  the  bill,  at  least,  he  deemed 
necessary;    "unless,"   he  added,   "wo  are 


132 

willing  to  submit  all  these  oflSces  to  an 
absolute  and  perfectly  irrespousible  remov- 
ing power;  a  jiower  which,  as  recently  ex- 
ercised, tends  to  turn  the  whole  body  of 
public  officers  into  partisans,  dependents, 
favorites,  sycophants  and  man -worshipers." 
Being  of  opinion  that  the  proposed  quali- 
fication, "mild  and  gentle"  as  it  was, 
"  would  have  some  effect  in  arresting  the 
evils"  against  which  it  was  aimed,  he 
therefore  gave  it  his  support. 

Such  an  act  might  now  be  passed,  and 
would  serve  the  purpose  of  a  palliative. 
But  it  would  not  eradicate  the  disease,  and, 
with  a  majority  of  the  senate  composed  of 
the  partisans  of  the  president,  would  proba- 
bly do  but  little  good.  The  other  expe- 
dient suggested  by  Mr.  AYebster,  of  pass- 
ing a  new  declaratory  act  asserting  the 
power  of  removal  in  the  president  and 
senate,  is  obnoxious  to  strong  objections. 


133 

One  of  the  lamentable  consequences  of  the 
prostitution  of  this  power  lias  been,  not 
only,  by  familiarity,  to  reconcile  the  public 
mind  to  its  abuse,  but  to  enlist  a  numerous 
and  powerful  army  of  place-liunters  and 
demagogues  to  regard  it  Avith  favor,  as 
their  main  reliance  for  success  in  their 
vocation.  From  them,  therefore,  such  a 
law  would  probably  meet  only  with  clamor 
and  denunciation,  as  an  act  of  legislative 
usurpation,  while  by  the  public  at  large 
it  would  be  regarded  with  comparative 
indifference.  It  must  be  conceded  also 
that,  to  reflecting  and  impartial  men,  it 
could  not  fail  to  appear  to  be  an  experi- 
ment of  very  questionable  i)ropriety.  The 
declaratory  law  would  itself,  at  all  times, 
be  subject  to  repeal,  and  many  years  of 
acquiescence  would  be  required  to  give  it 
indisputable  authority.  There  are,  more- 
over, serious  objections,  on  the  score  of 
12 


134 

convenience,  to  the  participation  of  the 
senate  in  tlie  exercise  of  the  power  of 
removal ;  and  if  it  could  be  effectually 
guarded  against  abuse  by  the  president,  he 
would  indubitably  be  its  fittest  depositary. 
It  may  be  worthy  of  consideration,  there- 
fore, whether  it  would  not  be  expedient  to 
endeavor  to  attain  this  object  by  means  of 
a  constitutional  amendment. 

The  long  continuance  of  the  tisurjmtion, 
upon  which  I  have  dwelt  at  so  much  length, 
for  such  it  is,  uncountenanced  by  the  letter 
of  the  Constitution,  and  sternly  forbidden 
by  its  spirit,  may  seem  to  palliate  the 
offense ;  but  it  affords  no  justification,  and 
can  by  no  means  be  held  to  neutralize  its 
criminality.  It  is  not  like  the  assumption 
of  a  questionable  power  from  good  mo- 
tives and  for  beneficent  ends ;  the  incorpo- 
ration of  the  Bank  of  the  United  States,  or 
the   law    declaring    government   paper   a 


135 

lawful  tender,  for  examj)le,  where  the 
acquiesceuce  of  the  nation  may  rightly 
be  held  a  practical  sanction  and  aflRrma- 
tion  of  the  power.  Here,  to  say  the  least, 
is  a  palpable  misapplication  and  wanton 
abuse  of  a  power,  prompted  b}-  no  justi- 
fiable motive,  and  productive  of  the  most 
injurious  consequences.  K^or  has  it  ever 
received  the  sanction  of  the  impartial 
judgment  or  moral  sense  of  the  American 
people.  On  the  contrary,  it  has  at  all 
times  been  condemned  by  enlightened  pub- 
lic sentiment.  Those  who  have  practiced 
it  have  acted  with  a  full  knowledge  that 
a  day  of  reckoning  might  come,  and  have, 
therefore,  acted  at  their  peril.  The  first 
great  transgressor — who  escaped  punish- 
ment only  because  he  was  more  powerful 
than  the  law  —  it  is  but  reasonable  to  con- 
clude, had  but  a  feeble  forecast  of  the 
magnitude  of  the  injury  he  was  inllicting 


13G 

on  bis  country  :  liis  successors  bad  tbe  ligbt 
of  experience  to  guide  tbem,  and  bave 
incurred  tbe  superadded  guilt  of  setting  its 
admonitions  at  naugbt. 

Tbere  are  otber  acts  of  tbe  present 
executive  on  wbicb  I  bave  abstained  from 
commenting,  not  because  tbey  would  bear 
tbe  test  of  tbe  principles  I  bave  laid  down 
witb  respect  to  tbe  scope  of  executive 
power,  but  because  tbeir  conflict  witb  tbose 
princii)les  is  too  glaring  to  require  elucida- 
tion. 

It  is  not  to  be  denied  tbat  tbe  confusion 
of  tbe  public  mind  concerning  tbe  nature 
and  limits  of  tbe  executive  power,  civil  and 
military,  has  been  increased  by  tbe  exbibi- 
tions  of  it  during  tbe  continuance  of  tbe 
civil  war,  and,  were  it  not  tbat  tbe  presi- 
dent is  bound,  and  is  to  be  presumed,  to 
understand  bis  powers  and  duties,  at  all 
times,  tbe  present  executive  migbt  be  beld 


137 

excusable  for  having,  to  some  extent,  par- 
ticipated in  this  popiiLar  delusion.  But  it 
is  to  be  remembered  that  congress,  at  its 
extra  session  called  by  President  Lincoln 
immediately  after  the  breaking  out  of  the 
rebellion,  took  upon  itself  the  general 
direction  of  the  war,  and  exercised  it 
throughout,  by  enacting  laws  empowering 
the  president  to  do  whatever  they  deemed 
to  be  necessary  to  suppress  the  insurrec- 
tion, and  authorizing  the  measures  to  which 
he,  in  fact,  resorted.  xVn  examination  of 
these  acts  will  show  that  most  of  them,  by 
their  very  terms,  ceased  to  be  operative  as 
soon  as  the  insurgeuts  laid  down  their 
arms ;  and  as  these  laws  afforded  no  war- 
rant for  any  acts  on  the  part  of  the  execu- 
tive which  they  did  not  authorize,  so,  upon 
the  return  of  peace,  they  can  furnish  none 
for  acts  which  would  have  been  unwarrant- 
able if  they  had  never  been  enacted.     It  is 


138 

true,  also,  that  in  the  unprecedented  situa- 
tion in  whicli  the  country  was  placed  by 
the  sudden  outbreak  of  an  insurrection  so 
formidable,  the  American  people  ought  to 
have  been,  as  they  showed  themselves  in 
fact  to  be,  at  all  times  disposed  and  willing 
to  overlook  the  occasional  errors  of  judg- 
ment, and  assumptions  of  questionable 
powers,  by  the  conscientious  and  patriotic 
man  who  then  occupied  the  executive  chair; 
but,  however  difficult  and  embarrassing  the 
task  that,  upon  the  suppression  of  the  insur- 
rection, was  undertaken  by  his  successor,  he 
forfeited  all  claim  to  forbearance  or  impu- 
nity by  unnecessarily  and  most  reprehensi- 
bly  taking  it  upon  himself  without  legis- 
lative aid  and  direction. 

If  an  intelligent  subject  of  a  despotic 
government  had  come  among  us  immedi- 
ately after  his  accession  to  the  presidency, 
ignorant  of  the  organic  structure  of  our 


139 

political  iustitutioiis,  would  be  have  been 
likely,  diiriug  tbe  recess  of  congress,  to 
discover,  from  passing  events,  tbat  our  gov- 
ernment was  less  despotic  tban  bis  own? 
And  if  be  bad  remained  bere  long  enougb 
to  read  tbe  message  of  tbe  president  at  tbe 
opening  of  tbe  next  session  of  congress, 
would  be  not  bave  sougbt  in  it,  in  vain,  for 
tbe  recognition  of  any  riglit  in  congress 
to  exercise  an  effective  control  over  bis  will 
in  prosecuting  bis  scbeme  of  construction  ? 
Tbese  are  momentous  questions;  and  if 
tbey  admit  of  no  otlier  tban  negative 
answers,  it  can  require  no  argument  to 
prove  tbat  it  is  bigb  time  for  a  strenuous 
effort  to  restore  tbe  government,  at  once 
and  forever,  to  its  constitutional  equilib- 
rium. 


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